Moral and Political Conceptions of Human Rights: Implications for Theory and Practice 1107153972, 9781107153974

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moral and political conceptions of human rights In recent years, political philosophers have debated whether human rights are a special class of moral rights we all possess simply by virtue of our common humanity and which are universal in time and space, or whether they are essentially modern political constructs defined by the role they play in an international legal-political practice that regulates the relationship between the governments of sovereign states and their citizens. This edited volume sets out to further this debate and move it ahead by rethinking some of its fundamental premises and by applying it to new and challenging domains, such as socioeconomic rights, indigenous rights, the rights of immigrants, and the human rights responsibilities of corporations. Beyond the philosophy of human rights, the book has a broader relevance by contributing to key themes in the methodology of political philosophy and by addressing urgent issues in contemporary global policy making. Reidar Maliks is Associate Professor of Philosophy at the University of Oslo, Norway. His main research interests focus on political philosophy, including human rights, constitutionalism, and the philosophy of Kant. Johan Karlsson Schaffer is Associate Professor at the School of Global Studies, University of Gothenburg, Sweden, and Senior Research Fellow at the Norwegian Centre for Human Rights, University of Oslo, Norway. His main research interests are in the areas of political international theory, especially human rights and democratic theory.

Moral and Political Conceptions of Human Rights implications for theory and practice Edited by REIDAR MALIKS University of Oslo

JOHAN KARLSSON SCHAFFER University of Gothenburg

University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 4843/24, 2nd Floor, Ansari Road, Daryaganj, Delhi – 110002, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107153974 doi: 10.1017/9781316650134 © Cambridge University Press 2017 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2017 Printed in the United States of America by Sheridan Books, Inc. A catalogue record for this publication is available from the British Library. isbn 978-1-107-15397-4 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

page vii xi xiii

List of Contributors Foreword by James W. Nickel Acknowledgments Expanding the Debate on Moral and Political Approaches to the Philosophy of Human Rights Johan Karlsson Schaffer and Reidar Maliks

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part i

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Theory, Politics, and Practice: Methodological Pluralism in the Philosophy of Human Rights Kristen Hessler

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The Point of the Practice of Human Rights: International Concern or Domestic Empowerment? Johan Karlsson Schaffer

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Rawls’s Relational Conception of Human Rights Luise Katharina Mu¨ller

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Theories of Human Rights: Political or Orthodox – Why It Matters Andreas Follesdal

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Mediating the Theory and Practice of Human Rights in Morality and Law David Ingram

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Kantian Human Rights or How the Individual Has Come to Matter in International Law Howard Williams

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part ii

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Human Rights Solidarity: Moral or Political? Seth Mayer

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When the Practice Gets Complicated: Human Rights, Migrants and Political Institutions Jelena Belic

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Can Naturalistic Theories of Human Rights Accommodate the Indigenous Right to Self-Determination? Kerstin Reibold

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Political Conceptions of Human Rights and Corporate Responsibility Daniel P. Corrigan

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Socio-Economic Rights: Between Essentialism and Egalitarianism Malcolm Langford

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Index

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Contributors

Jelena Belic is a PhD candidate at the Central European University in Budapest, where she specializes in political philosophy. Her research focuses on developing an account of a transitional theory of global justice that aims to identify transitory moral requirements raised by a need for global institutional reforms. Her interests include theories of cosmopolitanism and global justice, methods in political theory, and human rights. Daniel P. Corrigan is a PhD candidate in philosophy at the University of Miami. His research is in human rights, political and legal philosophy, and applied ethics. In particular, his work has focused on business and human rights and environmental human rights. Beginning fall 2017, he will be Arsht Ethics Initiatives Post-Doctoral Associate in Business Ethics at the University of Miami School of Business Administration. Andreas Follesdal is Professor of Political Philosophy, Faculty of Law, University of Oslo. He is Principal Investigator for the European Research Council Advanced Grant MultiRights 2011–2016 on the Legitimacy of MultiLevel Human Rights Judiciary, and Co-Director of PluriCourts, a Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order. He obtained a PhD in philosophy from Harvard University in 1991. Follesdal publishes in the field of political philosophy, mainly on issues of international political theory, globalization/Europeanization, human rights, and socially responsible investing. Kristen Hessler is Associate Professor of Philosophy at the State University of New York at Albany. Her research focuses on political philosophy (especially issues in global justice, human rights, and international law), public health ethics, and environmental ethics. She has published articles on international human rights law, the human rights approach to public health ethics, and environmental justice. vii

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David Ingram is Professor of Philosophy at Loyola University of Chicago. He is the author of several books on law, rights, and democracy, and has published extensively on critical theory and both Anglo-American and continental social philosophy. His most recent book is World Crisis and Underdevelopment: A Critical Theory of Poverty, Agency, and Coercion (Cambridge University Press, 2018). He is currently writing The Ethics of Development, to be published in 2018. Malcolm Langford is Professor of Public Law at the Faculty of Law, University of Oslo, and Co-director, Centre on Law and Social Transformation, University of Bergen and Chr. Michelsen Institute. He is the co-editor of Socio-Economic Rights in South Africa: Symbols or Substance? and Global Justice, State Duties, both with Cambridge University Press. His publications span human rights, international development, international investment and comparative constitutionalism and have appeared in leading journals in law, economics, ethics and critical development studies. Reidar Maliks is Associate Professor of Philosophy and Senior Research Fellow at PluriCourts: Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, both at the University of Oslo. His main research is in political theory and the history of political thought. Recent publications include Kant’s Politics in Context and Kantian Theory and Human Rights. His articles have appeared in journals such as History of Political Thought and Kantian Review, and in the edited volume Freedom and the Construction of Europe (Cambridge University Press, 2013). Seth Mayer is Assistant Professor of Philosophy at Manchester University, Indiana. He completed his PhD in the Department of Philosophy at Northwestern University. His research focuses on democratic theory, global political philosophy, criminal law and philosophy, critical theory, and ethics. Luise Katharina Mu¨ller is a postdoctoral fellow in practical philosophy at Freie Universita¨t Berlin. She completed her PhD in political theory at Freie Universita¨t Berlin with a dissertation on the political legitimacy of international criminal law institutions. Her research interests include the philosophy of rights, the moral permissibility of punishment, the concept of equality and methodological issues in political philosophy. James W. Nickel is Professor of Philosophy and Law at the University of Miami. His research is in human rights law and theory, political philosophy, philosophy of law, and constitutional law. Nickel is the author of Making Sense of Human Rights (1987, heavily revised 2nd edn 2006) and of more than

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sixty articles in philosophy and law journals including the Columbia Law Review, Ethics, the Philosophical Quarterly, Philosophy and Public Affairs, and the Yale Journal of International Law. Kerstin Reibold studied philosophy, politics, and German literature at the University of Mannheim, the University of Heidelberg, and the University of Essex. She is currently a PhD candidate at the graduate school “Formations of the Global” at the University of Mannheim. Johan Karlsson Schaffer is Associate Professor at the School of Global Studies, University of Gothenburg, and Senior Research Fellow at the Norwegian Centre for Human Rights, University of Oslo. His main research interests are in the areas of political and international theory, especially human rights and democratic theory. Recent publications include articles in Review of International Studies, Political Studies, International Theory, and Human Rights Review, as well as the edited volume The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives (Cambridge University Press, 2013). Howard Williams is Honorary Distinguished Professor in the School of Law and Politics at Cardiff University and Emeritus Professor of Political Theory in the Department of International Politics, Aberystwyth. He is author of Kant’s Political Philosophy; Concepts of Ideology; Hegel, Heraclitus and Marx’s Dialectic; International Relations in Political Theory; International Relations and the Limits of Political Theory; Kant’s Critique of Hobbes; and Kant and the End of War. He is the co-author of Francis Fukuyama and the End of History with David Sullivan and G. Matthews. He is a founding editor of the journal Kantian Review and editor of The Philosophy of Immanuel Kant in the Cambridge University Press series “Elements.”

Foreword

The essays in this interesting and useful collection are all concerned with the philosophical dispute between “moral” and “political” conceptions of human rights. John Rawls gets the credit (or blame) for setting off this philosophical debate with his brief discussion of human rights in The Law of Peoples.1 Rawls suggested that the main roles of human rights at the international level are (1) helping define the normative structure of the global system by giving content to normative concepts such as legitimacy, sovereignty, permissible intervention, and membership in good standing in the society of peoples, and (2) helping to provide criteria for when and how countries may be sanctioned for serious human rights violations. Since The Law of Peoples is a normative reconstruction of international law and politics within today’s global system, and since Rawls started his characterization with “Human rights in the Law of Peoples are . . .” it is far from clear that he intended to say anything about human rights in domestic politics and interpersonal relations. He may just have been setting out the functions relevant to his internationally oriented project. “Moral” conceptions of human rights conceptions hold that the justification of at least some political and legal rights is based on analogous moral rights and reject limiting the roles of human rights to the political realm. Further, they tend to take a long historical perspective on human rights ideas and practice – viewing them as appearing long before the Universal Declaration of Human Rights (1948) and as playing a role in the nineteenthcentury struggle against slavery. One reason for the popularity and persistence of this debate is that it incorporates an important dispute that moral and political philosophers had already been discussing for much longer, namely whether the rights that we 1

John Rawls, The Law of Peoples, Cambridge, MA: Harvard University Press, 1999.

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find in national and international bills of rights presuppose and correspond to natural or moral rights. Utilitarians and other consequentialists deny this, as do other normative theories that start with very abstract values or norms and avoid emphasizing rights. And even theorists who allow that there are some natural or moral rights may follow Allen Buchanan in denying that there is a close correspondence between those rights and all or most of the rights found in contemporary bills of rights and human rights treaties.2 Theorists working in different areas of philosophy are likely to have different conceptions of human rights and of human rights practice. Moral philosophers may be most interested in whether and how moral theories can justify human rights and with the operation of rights in both the interpersonal and political realms. Political philosophers and philosophers of law may be most interested in the political dimensions, national and international, of human rights practice. The different functions that the two sides assign to human rights probably reflect their preoccupation with different questions and different normative spheres. James W. Nickel

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Allen Buchanan, The Heart of Human Rights, Oxford: Oxford University Press, 2013.

Acknowledgments

This book developed out of a seminar held at the University of Oslo in the summer of 2014. Many thanks to those who contributed to the event, including Camilla Serck-Hanssen, Andreas Follesdal, James Nickel, Howard Williams, and Adam Etinson. We would also like to thank several institutions for financial support. The seminar leading to the book received support from MultiRights: The Legitimacy of Multi-Level Human Rights Judiciary, an Advanced Grant by the European Research Council (agreement no 269841) under the European Union’s Seventh Framework Programme (FP7/2007–2013). It also received support from PluriCourts: The legitimacy of the International Judiciary, a Centre of Excellence funded by the Research Council of Norway (project number 223274). Support was also provided by the Department of Philosophy, Classics, History of Art and Ideas, and the Norwegian Kant Society. We have received excellent support and advice throughout the process at Cambridge University Press; many thanks to John Berger, Fiona Allison, and Grace Morris. For efficient editorial assistance in Oslo, we would like to thank Henriette Jakobien Liesker and Mats Andreas Nielsen. Last but not least, we express our gratitude to the authors who contributed to this volume for their commitment, patience, and professionalism.

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Expanding the Debate on Moral and Political Approaches to the Philosophy of Human Rights Johan Karlsson Schaffer and Reidar Maliks

INTRODUCTION

In recent years, political philosophers have been engaged in a lively debate on the virtues of two distinct methods for constructing a philosophical theory of human rights. On the so-called moral approach, human rights are a special class of moral rights we all possess simply by virtue of our common humanity and which are universal in time and space. By contrast, the political approach instead seeks to understand what human rights are by interpreting the role they play in international affairs as a distinctly modern international legal-political practice that regulates the relationship between governments of sovereign states and their citizens, which has emerged through the creation of the international human rights regime since the end of the Second World War. This volume sets out to contribute to this debate and move it ahead by rethinking some of its fundamental premises and by applying it to new and challenging domains, which have previously been understudied. Thus, the book has two main purposes: to extend and enrich the debate about moral and political conceptions as alternative methodological approaches to the philosophy of human rights, and to explore how these approaches speak to pertinent problems in contemporary human rights practice. In this introductory chapter, we first provide an outline of the debate, before we proceed to outline the issues covered in the various chapters. However, let us first say something about the broader relevance of the chapters compiled in this volume. First, the debate on the philosophy of human rights is important because it has normative implications that bear on salient political issues of our time. This is not just because they may be taken to provide normative standards for legitimate statehood and permissible intervention, as some advocates of a political conception would claim. They also influence policies and decisions 1

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of a more mundane but still highly political nature. As Andreas Follesdal suggests in his contribution, normative theories of human rights inform political debates about both the legitimacy of international human rights institutions and the jurisprudence of international human rights courts. Hence, how we think of human rights – how to justify them, what rights there are, to whom they belong, what sort of duties they entail and for whom – has important implications for a range of policy areas. Second, the recent upsurge in interest for the philosophy of human rights follows developments both in the real world and in academic research. For one thing, as an emerging international practice, the international human rights regime has expanded dramatically since its inception, with a growing number of international treaties encompassing ever more states, detailing more types or rights and involving an expanding range of non-state agents, such as international organizations, multinational corporations, and civil society groups (Schaffer, Føllesdal, and Ulfstein 2013). While the regime has expanded successively, it also increasingly engenders activism and resistance, acceptance and criticism. Moreover, human rights is also the subject of a growing multi-disciplinary research program, involving scholars in law, political science, history, sociology, anthropology, and other disciplines, producing an ever richer literature on the origins, functioning, and effects of international human rights norms. The richness and inconclusiveness of these literatures mean that philosophical arguments can tap them for support in various ways (Flynn 2012): to demonstrate the contextual contingency of international human rights norms – or their universal validity; to show the inefficacy of international law norms – or their subtle effects on politics, and so on. Both the expanding empirical domain and the growing academic literature on human rights call for philosophical enquiry. Third, the debate about moral and political conceptions of human rights also reflects broader methodological concerns in political theory and philosophy, about the role of ideal theory, formulated under the assumption of full compliance and favourable conditions, and whether we should take into account contingent social realities, such as existing societal institutions and practices, when we formulate normative theories (see, for instance, Sangiovanni 2007; Ronzoni 2009; Valentini 2011). Specifically, the debate about practice-dependence concerns how normative theory should take existing social practices into account. Some argue that we cannot justify principles of justice independently of the practices and institutions they are intended to regulate, whereas others hold that existing practices and institutions impose constraints only when we evaluate how to implement independently justified principles. Political philosophy seemingly faces a dilemma: either we risk

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formulating normative principles that offer little practical guidance because they fail to take into account current social realities and the fact that not everyone acts on even the most well-justified principles, or we risk justifying the status quo, if the normative principles we reconstruct from existing practice offer insufficient critical distance. The nature of the international human rights regime may actually make it an especially illustrative example for many such issues, since it confronts the most demanding moral universalism with the harshest political realities of a world of sovereign states. Hence, since the moral and political approaches to human rights represent broader methodological strands in contemporary political philosophy, we believe there are more general lessons to be learned from engaging with the critical case of human rights. These are some of the inroads that motivate this volume, which brings together a set of original chapters written by scholars in philosophy, political science, and law. MORAL VS POLITICAL AND BEYOND

The debate about moral and political conceptions of human rights has emerged in recent years as a key topic in political and legal philosophy. Traditionally, philosophers have approached the topic of human rights from moral theory, assuming human rights to be a type of basic moral entitlements human persons hold simply by virtue of being human (e.g. Cranston 1973). On this ‘moral’ view – sometimes alternatively labeled orthodox, natural law, naturalist, ethical, or humanist – the source for constructing a theory of human rights is rooted in human nature, though proponents of a moral approach hold different ideas about precisely what aspect of human nature grounds human rights: some notable candidates are autonomy or personhood (Griffin 2008) and capabilities (Sen 2004; Nussbaum 1997). Because human rights, on this view, are theorized as following from morally significant properties innate to human beings, human rights are, by definition, universal and timeless, and they can be theorized independently of the currently existing international human rights regime and its legal doctrine, of the international system of sovereign states, or of any such historically contingent social institutions. Thus, as an advantage of the moral approach, it offers an independent moral standard by which to hold particular instantiations of human rights, for instance in order to criticize certain currently institutionalized rights or to identify new ones that ought to be recognized. On the other hand, a common objection to the moral approach holds that it may struggle to make sense of many of the specific rights that contemporary international human rights

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documents acknowledge, such as due process rights or the right to free education.1 Such rights, a critic may argue, can hardly be theorized as deriving from a timeless, universal conception of the human person, since their possession, exercise, or violation presupposes that certain social conditions are in place. In recent years, much of the revived philosophical interest in human rights has assumed a different methodology that seeks to understand human rights as a contemporary institutionalized practice. On this “political” or “practical” view, human rights are not seen as pre-political entitlements all persons have simply because they are human, but rights that originate within political institutions and that regulate the relation between citizens and governments, constraining state sovereignty in the modern international system. Consequently, the philosopher’s task in formulating a theory of human rights is to critically reconstruct human rights as they exist in the international legal doctrine and practice of human rights (Buchanan 2010) – not in order to evaluate whether existing practice conforms to some independent moral theory of what human rights are, but rather “to clarify the understanding of human rights with respect to its own practice” (Baynes 2009). Consequently, this approach claims to offer an internal understanding of human rights practice that is also critical: It does not just accept whatever happens to be in current doctrine but rather critically evaluates the practice in terms of its own governing purpose or function. Specifically, on the predominant political conceptions, international human rights are seen as part of an international legal framework that specifies standards of legitimacy and limits on sovereignty. These standards may determine, for instance, whether the international community should tolerate a government, even if it pursues certain illiberal practices, or whether other states, unilaterally or in concert, may legitimately intervene, possibly by force, against a government that engages in or fails to prevent gross violations of human rights. Proponents of political conceptions differ in their views about which rights belong on the list: Michael Ignatieff (2001) includes only a minimal set of rights to bodily security, while John Rawls (1999) has a longer list, including rights to life, subsistence, property, equality before the law, and religious freedom, but stops short of a full package of liberal and democratic rights, such as freedoms of expression and association. Even Joshua Cohen (2004), who argues, contra Ignatieff, that the aim to find a minimal justification of human rights need not also imply substantive minimalism, excludes a right to democratic participation (cf. Beitz 2009, 1

For instance, we find these rights, respectively, in ICCPR (art. 14, 16) and ICESCR (art. 13, 14).

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chap. 7). Hence, to the extent that the chief purpose of the practice of human rights is to provide standards of legitimate statehood and legitimate interference, the list will typically be truncated, so as not to grant too many excuses for external intrusion in sovereign states. This also demonstrates that political conceptions may have a critical edge towards currently existing practice and doctrine – they need not just defend the status quo. Still, by reconstructing a philosophical theory of human rights from existing legal-political practice, the political conception – so a frequent objection goes – may seem “implausibly contingent on the way the world happens to be organised here and now” (Valentini 2012, p. 183). However, this volume has come about on the presumption that it is an oversimplification to describe the contemporary philosophy of human rights in terms of two diametrically opposed approaches, or even two rival camps of philosophers. It may be helpful as a dramaturgical, pedagogical device to highlight key controversies in the literature, but in reality the dichotomy is overstated, for several reasons. First, both approaches entail parallel methodological problems. For the political approach, a key question is why we should grant existing practice authority over our theorizing about human rights. This touches upon the methodological debate in contemporary political philosophy on what role an account of existing political institutions and other contingent facts about our current society should play when we formulate and justify theories of justice. But the moral approach has a similar methodological and interpretive challenge: Why should we allow a particular conception of the human person to steer our normative thinking about human rights, and how can we reliably get at that conception? Both approaches also need some strategy for dealing with aberrations from its reconstruction of the practice or of human persons, such as when we find a wide range of heterogeneous functions in the existing practice of human rights, or when we encounter individual human beings who diverge from the foundational notions of human autonomy or capabilities, such as infants or persons with disabilities (not to speak of corporate agents such as corporations or indigenous peoples). Second, several commentators have recently suggested that the two approaches are not so antagonistic after all, but actually compatible: They may complement, or even presuppose one another, so that any full theory of human rights will need to mediate between international human rights discourse as it exists and moral theory (Gilabert 2011; Liao and Etinson 2012). Regardless of whether you begin theorizing human rights from moral theory or political practice, you must, sooner or later, offer a critical account of existing institutionalized human rights norms; hence, the two approaches rather

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disagree about whether you can start that task without first formulating an independent moral theory of human rights (Buchanan 2010). Vice versa, even if you assume a political view, you must eventually engage in the kind of moral reasoning characteristic of the moral view (Valentini 2012). Some of the contributions to this volume demonstrate that theorists who have been assigned to one camp actually straddle the distinction. For instance, Luise Mu¨ller shows how John Rawls, often seen as the instigator of the political approach, actually offered a moral justification of human rights as a prerequisite of social cooperation, while Howard Williams argues that Immanuel Kant, his natural law approach notwithstanding, has valuable contributions to the political approach, too. Third, many of the contributions to this volume demonstrate that there is more diversity within each approach than what is registered by the crude depiction of a debate between two opposing camps. For instance, critics have sometimes faulted the political approach for assuming, too simplistically, that human rights are essentially “triggers for intervention” (Tasioulas 2009; Nickel 2006). That is, international human rights norms chiefly offer normative standards for when the international community may legitimately interfere with a state that fails to protect the rights of its citizens. However, Johan Karlsson Schaffer argues that by recognizing a different function of the practice of international human rights – how they empower agents in domestic society – the political conception’s methodology might allow us to assess existing practice in a less restrictive way. Similarly, Kristen Hessler’s contribution shows that theorists associated with the political approach differ along several dimensions, including what role they ascribe to existing practice in their theory, while Daniel Corrigan suggests that a political conception can entail different positions on the pertinent topic of corporate social responsibility. In that sense, we see the set-up of a controversy between two competing approaches only as the starting point for a dialogue that includes a much wider variety of voices and perspectives on what a philosophical theory of human rights should seek to achieve. OUTLINE OF THE CHAPTERS

The chapters in the volume are organized into two parts: the first part addresses the overarching debate on moral and political conceptions by looking at the works of particular philosophers, such as Immanuel Kant, John Rawls, James Griffin, or Charles Beitz, whereas the second part confronts the debate, and the established approaches, with challenging issues in the contemporary philosophy and practice of human rights, such as corporate obligation or migrant rights.

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The first part is part of a new turn towards downplaying the simplified bifurcation characteristic of much of the debate so far. Some of the authors seek nuances within each philosophical conception, while others aim to altogether transcend the separation into two methodologically opposed approaches. In “Theory, Politics, and Practice: Methodological Pluralism in the Philosophy of Human Rights,” Kristen Hessler engages in some much needed conceptual clarifications. John Rawls, Joseph Raz, and Charles Beitz are usually taken to equally represent the political approach but in fact they can be distinguished along two lines. First, a practice-sensitive approach must be kept apart from a practice-insensitive approach. A theory is practice-sensitive to the extent that it aims to be responsive to current human rights practice, in contrast to practiceinsensitive (or ideal) theory, which aims to articulate a moral goal or ideal. Second, a political approach must be kept apart from a moral approach. A theory is political to the extent that it employs standards drawn from institutions regulating societies, by contrast to moral theories, which draw on interpersonal or non-institutional morality. On these two standards, Rawls, Raz and Beitz differ markedly, and for this reason Hessler argues that reconciliation efforts between the approaches should cease to treat them as representing a united front. She concludes that there may not be much to be gained from defining a single methodology, since the approach to human rights can legitimately differ according to domain (moral or legal theory) and according to purposes in terms of concrete applications to practical questions. In “The Point of the Practice of Human Rights: International Concern or Domestic Empowerment?,” Johan Karlsson Schaffer works within the political conception of human rights to challenge its central claim that international human rights chiefly provide standards for international conduct or reasons for interference. As Charles Beitz puts it, human rights are matters of international concern: They give reasons for outside agents to act when a state fails its first-hand responsibilities for protecting the rights of its residents. Schaffer offers a different view, on which international human rights are chiefly implemented and enforced through political action in the domestic sphere rather than in international society. International human rights norms authorize and empower individuals and groups to claim their entitlements and challenge governmental authority. This “domestic empowerment view,” he argues, allows for reconstructing the practice of international human rights in a way that can make better sense, compared to the dominant political conception, of salient features of that practice, such as the importance of legalization, the idea of equal status that animates many human rights, and the constructive role international human rights play in societies where the rule of law and democracy are generally respected.

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In “Rawls’s Relational Conception of Human Rights,” Luise Katharina Mu¨ller argues in favour of abandoning the separation between moral and political conceptions of human rights. She proposes an integrated view of human rights, which takes its point of departure in an original interpretation of John Rawls. The dominant view is that Rawls’s philosophy supports only a political conception of human rights. Mu¨ller argues that this interpretation is mistaken and that Rawls’s human rights conception falls neither exclusively into the moral nor exclusively into the political category. In fact, he does not simply define human rights by their international function and does not take the practice of human rights to be in any sense normatively authoritative. Instead, he offers a moral grounding and a justification for human rights, which is based on them being necessary to domestic social cooperation. His emphasis on an idealized concept of social relations stands in contrast to standard moral approaches, which justify human rights in virtue of some individual moral characteristic. Moving beyond the dichotomy of conceptions of human rights, this theory has the further advantage of avoiding a demanding theory of the good life and of being capable of explaining the inherent status egalitarianism of human rights. In “Theories of Human Rights: Institutional or Orthodox – Why It Matters,” Andreas Follesdal defends a “global” political theory of international legal human rights against criticism raised by “orthodox” accounts. He defends the political conception against the claim that it is unduly constrained to actual consensus on premises given within the current state system to match the universal ambitions of human rights. The political approach does not seek to avoid normative premises and an orthodox account is not necessary in order to specify the substantive content of human rights. Such a specification can be achieved by the method of reflective equilibrium, which takes into account considered judgments concerning human rights, including general principles and human rights treaties. As an example, Follesdal discusses the concept of dignity within a contractualist philosophy. This contractualist approach does not shy away from normative premises, yet they must be in line with a global public reason. In “Mediating the Theory and Practice of Human Rights in Morality and Law,” David Ingram argues that an account of human rights that is responsive to the full range of human rights practices must allow that human rights fulfill multiple complementary functions: political, legal, and moral. While legal and political accounts mainly highlight the function of human rights in promoting social justice, moral accounts mainly highlight the function of human rights in protecting vital individual interests. The account he defends posits a closer connection between these functions by examining the practical

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conditions underlying institutionalized (specifically justiciable) human rights. Displaying the ambiguous moral-legal status of human rights in official human rights documents and practices, and critically evaluating it in light of the debate between moral and political approaches, Ingram offers a pluralistic account of human rights, which endorses a strong role for democratic legitimation. In “Kantian Human Rights or How the Individual Has Come to Matter in International Law,” Howard Williams enlists Immanuel Kant in justifying human rights in a way that transcends the dichotomy between the moral and the political approach. The two approaches’ horizons inevitably merge because no moral account can entirely ignore considerations that are of importance to political accounts, just as no political account can entirely overlook the wider philosophical background into which human rights claims fall. One might easily think that Kant’s philosophy, due to its moral universalism and origins in the natural law tradition, would side with the moral approach. Indeed, from a Kantian point of view the political account requires a moral underpinning. Yet, Williams argues, Kant also makes contributions to the political approach due to his concern about the institutionalization and protection of rights. Indeed, he anticipated many aspects of the emerging postwar human rights practice. Moreover, the Kantian view of law is monistic, such that domestic human rights law is intrinsically dependent on laws establishing and maintaining a peaceful international order. Thus, Williams concludes that Kant lends valuable support to the political view while remaining true to its moral premises.

*** The second part of the volume gathers chapters that seek to apply the moral and political conceptions to various areas of the human rights practice. Several of these authors take a clear stand in favor of one of the two conceptions, to some extent in contrast to several of the theoretical contributions of the first part of the book. Yet, while insisting on the conceptual separation, they also seek to make each account more capacious, showing it to apply to a range of areas. Hence, some of the chapters illuminate the human rights situation of social agents that tend to have an unsettled place within the practice, such as migrants, indigenous people, or corporations. Other chapters apply contemporary human rights theory to the challenge of socio-economic rights or to the problem of generating the solidarity that is necessary for the joint action in support of human rights. In “Human Rights Solidarity: Moral or Political?,” Seth Mayer applies the debate between moral and political approaches to the question of what it takes

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to establish the solidarity necessary for realizing human rights. He defines solidarity as a unity among persons, which grounds moral duties towards their group. The problem with moral theories is that they do not designate the practices and institutions through which those committed to human rights should try to achieve their goals. They provide only an abstract object of solidarity. As a result, such approaches fail to make sense of the fidelity and loyalty necessary to support the joint political action necessary for realizing human rights. Mayer argues that the political approach offers a better way of realizing solidarity. This is because it relies on an existing practice, thus offering a concrete vehicle for pursuing human rights, enabling joint action. In “When the Practice Gets Complicated: Moral Rights, Migrants and Political Institutions,” Jelena Belic explores the contrast between moral and political conceptions of human rights applied to the human rights of immigrants. Human rights are commonly thought to be universal, yet states often trade off the human rights of migrants for rights of their citizens. She argues that the political approach does not have a principled objection to such tradeoffs. It justifies human rights by deliberated internal reasons – the reasons that the agent would come up with by deliberating from the beliefs and motivations he actually has – and this concession to practice is to take away the critical edge of human rights and remove their inalienability. As a result the political approach can permit trade-offs between the rights of citizens and immigrants, and cannot well explain how the human rights of migrants are claimable against foreign states. Belic proposes instead a moral approach to human rights, arguing that grounding human rights in common humanity can provide weight to the human rights of migrants and accordingly rule out trade-offs justified by the maximization of the interests of citizens. Kerstin Reibold asks, “Can Naturalistic Theories of Human Rights Accommodate the Indigenous Right to Self-Determination?” On the naturalistic conception of human rights, the indigenous right to self-determination is usually ruled out. James Griffin, for example, argues that human rights necessarily are individual rights and not collective rights. This restriction is worrisome, because if indigenous rights are excluded from the human rights realm, they are potentially weaker than those having human rights status. Consequently, if there is a rights conflict, indigenous rights will be trumped by the stronger human rights claims. Against Griffin, Reibold argues that in fact the moral approach can include the indigenous right to self-determination. Distinguishing between basic and derived human rights, she argues that the indigenous right to selfdetermination can be interpreted as a derived human right even though it is a collective right. In many cases it is a necessary means to protect the right to individual self-determination as well as the social bases of self-respect and the

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status equality of indigenous peoples. All of these goods constitute basic interests of human beings, motivating a derived human right to protect them. While the previous chapters argue that a political or a moral view makes a difference to the nature of human rights obligations, Daniel Corrigan doubts that this is the case for the political approach when applied to the area of corporate human rights obligations. In “Political Conceptions of Human Rights and Corporate Responsibility,” his point of departure is John Ruggie’s influential “Guiding Principles on Business and Human Rights,” which has been taken to endorse a political approach to human rights. This is said to have led Ruggie to limit corporate obligation to mere respect for human rights, while states (or governments) bear the full range of human rights obligations, including duties to respect, protect, and fulfill these rights. Corrigan argues that this conclusion relies on a false general claim. The mere fact that a theory offers a political conception of human rights does not necessarily entail any certain range of corporate human rights obligations. He reaches this conclusion through a discussion of Rawls’s, Raz’s, and Beitz’s political conceptions. Whether a political conception contains a particular view of corporate human rights obligations will depend on whether the practice is understood as including more or less of the activities relating to human rights. For example, if the practice is understood as composed of a narrow range of aspects, the result may be a narrower construal of the essential features or functions of human rights, possibly excluding corporate human rights obligations. A broader construal of the practice may yield the opposite conclusion. In “Socio-Economic Rights: Between Essentialism and Egalitarianism,” Malcolm Langford sets out to demonstrate that several prevailing philosophical theories of rights actually offer resources for justifying a category of rights often treated stepmotherly. Philosophers leaning toward both moral and political conceptions of human rights have criticized socio-economic rights on surprisingly similar terms, finding them either too ambitiously aspirational or too insignificant (e.g. the oft-ridiculed right to periodic holidays with pay) to deserve to be called universal human rights, or both. And those theories within both approaches that make some room for socio-economic rights often justify only a bare minimum. Langford shows that a range of moral theories, ranging from freedom and agency to needs, capabilities, and justice, offer resources for justifying socio-economic rights, but he also suggests that purely moral theories are limited because they neglect the more democratic origins of social rights practice. Instead, he draws on both international and domestic rights practice in order both to resolve questions about the scope of social rights and their egalitarian nature and to meet classical conceptual objections against socio-economic rights.

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References Baynes, Kenneth. (2009) “Toward a Political Conception of Human Rights,” Philosophy & Social Criticism 35 (4): 371–90. doi:10.1177/0191453708102091. Beitz, Charles. (2009) The Idea of Human Rights. Oxford: Oxford University Press. Buchanan, Allen. (2010) “The Egalitarianism of Human Rights,” Ethics 120 (4): 679–710. doi:10.1086/653433. Cohen, Joshua. (2004) “Minimalism About Human Rights: The Most We Can Hope For?” Journal of Political Philosophy 12 (2): 190–213. doi:10.1111/j.1467-9760.2004.00197.x. Cranston, Maurice William. (1973) What Are Human Rights? London: Bodley Head. Flynn, Jeffrey. (2012) “Human Rights in History and Contemporary Practice: Source Materials for Philosophy,” In Philosophical Dimensions of Human Rights, edited by Claudio Corradetti, 3–22. Dordrecht: Springer Netherlands. Gilabert, Pablo. (2011) “Humanist and Political Perspectives on Human Rights,” Political Theory 39 (4): 439–67. doi:10.1177/0090591711408246. Griffin, James. (2008) On Human Rights. Oxford: Oxford University Press. Ignatieff, Michael. (2001) Human Rights as Politics and Idolatry. Princeton, NJ: Princeton University Press. Liao, S. Matthew and Adam Etinson. (2012) “Political and Naturalistic Conceptions of Human Rights: A False Polemic?” Journal of Moral Philosophy 9 (3): 327–52. doi:10.1163/17455243–00903008. Nickel, James W. (2006) “Are Human Rights Mainly Implemented by Intervention?” In Rawls’s Law of Peoples: A Realistic Utopia?, edited by Rex Martin and David A. Reidy, 263–77. Oxford: Blackwell. Nussbaum, Martha C. (1997) “Capabilities and Human Rights,” Fordham Law Review 66: 273–300. Rawls, John. (1999) The Law of Peoples. Cambridge, MA: Harvard University Press. Ronzoni, Miriam. (2009) “The Global Order: A Case of Background Injustice? A Practice-Dependent Account,” Philosophy & Public Affairs 37 (3): 229–56. doi:10.1111/j.1088–4963.2009.01159.x. Sangiovanni, Andrea. (2007) “Global Justice, Reciprocity, and the State,” Philosophy & Public Affairs 35 (1): 3–39. Schaffer, Johan Karlsson, Andreas Føllesdal, and Geir Ulfstein. (2013) “International Human Rights and the Challenge of Legitimacy,” In The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives, edited by Andreas Føllesdal, Johan Karlsson Schaffer, and Geir Ulfstein, 1–31. Cambridge: Cambridge University Press. http://ssrn.com/abstract=2276835. Sen, Amartya. (2004) “Elements of a Theory of Human Rights,” Philosophy & Public Affairs 32 (4): 315–56. doi:10.1111/j.1088–4963.2004.00017.x. Tasioulas, John. (2009) “Are Human Rights Essentially Triggers for Intervention?” Philosophy Compass 4 (6): 938–50. doi:10.1111/j.1747–9991.2009.00246.x. Valentini, Laura. (2011) “Global Justice and Practice-Dependence: Conventionalism, Institutionalism, Functionalism,” Journal of Political Philosophy 19 (4): 399–418. doi:10.1111/j.1467–9760.2010.00373.x. (2012) “In What Sense Are Human Rights Political? A Preliminary Exploration,” Political Studies 60 (1): 180–94. doi:10.1111/j.1467–9248.2011.00905.x.

part i

1 Theory, Politics, and Practice Methodological Pluralism in the Philosophy of Human Rights Kristen Hessler

1.1 INTRODUCTION

The philosophy of human rights is currently engaged in a methodological dispute between traditionalist approaches (or, in some ways of drawing the distinction, naturalistic or humanist approaches), on one hand, and on the other, political or practical approaches, which focus on the role of human rights in international politics. In particular, John Rawls’s account of human rights is widely agreed to have introduced considerations about how human rights actually function in international politics into philosophical theorizing about them (Rawls 1999). Joseph Raz and Charles Beitz see themselves as following in Rawls’s footsteps in this regard; taken together, these three theorists are widely regarded as representatives of a political or practical approach to theorizing about human rights. Proponents of a traditional approach instead prioritize traditional forms of moral reasoning about human rights, often understood in the tradition of natural rights (Griffin 2008). I argue, first, that this received, two-camp taxonomy of views in the philosophy of human rights runs together two distinct, though related, sources of methodological disagreement: (a) whether (and to what extent) philosophers of human rights should be responsive to the practice of human rights in defining their philosophical agendas or goals and (b) whether the appropriate terrain for a philosophical analysis of human rights is moral or political, where

I thank the editors, Johan Karlsson Schaffer and Reidar Maliks, for their very helpful and thoughtful comments on earlier drafts. I also thank the attendees at the Philosophy of International Law Working Group at the IVR World Congress in Washington, DC, in July 2015, especially the organizers, David Lefkowitz and Joshua Kassner, for providing a forum to work on these methodological issues. Special thanks to Jon Mandle for valuable discussions about the larger issues addressed in this chapter.

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political views assume (and moral ones deny) that human rights must be defined and analyzed in terms of specifically political or institutional concepts. Second, against the grain of recent efforts to reconcile these perspectives, I argue that these methodological differences reflect substantively different philosophical projects (Gilabert 2011; Liao and Etinson 2012). In particular, I suggest that different methodologies reflect different understandings of what the philosophy of human rights is for – that is, what ends it can serve and what contributions philosophy can make to a better understanding of human rights theory and practice. 1.2 UNTANGLING THE RECEIVED TAXONOMY

Traditionalist approaches to the philosophy of human rights are typically concerned in the first instance with human rights understood as a subset of moral rights. To the extent that such approaches are concerned with human rights law or activism, they generally assume that the idea of human rights as it appears in such practices is derived from a preexisting philosophical concept of moral human rights. They therefore take their primary task to be developing a philosophically sound theory of moral human rights, both for its own sake and on the further assumption that such a theory is needed to guide and/or reform the practice. Thus, traditionalist views regard the practice as of merely secondary importance to the theoretical project. James Griffin is widely regarded as a paradigmatic example of a theorist working in the traditionalist mode. His theory of moral human rights begins with the historical idea of human rights as it emerged from Enlightenment thought, but is, as he says, an attempt to “complete” this historical idea in an analytically rigorous way. For Griffin, the best philosophical account of this historical idea construes human rights as those moral rights that protect human agency. Despite prioritizing the philosophical project of developing a moral theory of human rights, he also claims that his view should be of interest beyond philosophy, since, as he argues, “[p]art of the ambition of international law is to incorporate rights that exist independently of positive law. So international lawyers need a grasp of the existence conditions of these rights” (Griffin 2008, p. 204). By contrast, views that diverge from the traditionalist mode are generally classified as practical or political views. For example, Charles Beitz describes his own view as a “practical” approach, which “claims for the practice a certain authority in guiding our thinking about the nature of human rights” (Beitz 2009, p. 10). In a similar vein, Joseph Raz contrasts traditionalist views with what he calls “political” theories, according to which “[t]he task of a theory of

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human rights is (a) to establish the essential features which contemporary human rights practice attributes to the rights it acknowledges to be human rights; and (b) to identify the moral standards which qualify anything to be so acknowledged” (Raz 2010, p. 327). By starting with the rights already recognized as human rights within the practice, Raz’s political approach, like Beitz’s practical approach, allows existing human rights practice to set the agenda for the philosophy of human rights. In this respect, both theorists’ approaches contrast with traditionalist approaches. The received taxonomy classifies Beitz’s and Raz’s approaches together with John Rawls’s, usually describing them all as political views.1 However, this classification has the effect of blinding us to important differences between their respective approaches, as I argue in the following section. I then argue that the current limited taxonomy not only obscures the range of methodological variation among different theorists but also confuses attempts to assess this variation and respond to it, whether by trying to dissolve the apparent methodological disagreements or by defending one methodological camp against the others. 1.2.1 Practice-Sensitive vs. Practice-Insensitive Approaches I’ll use the label “practice-sensitive” to describe views that aim to be in some way responsive to current human rights practice.2 Importantly, views may be practice-sensitive in different ways. Moreover, this distinction defines a spectrum, in the sense that different views can be responsive to the practice in degrees. One form of practice-sensitivity concerns the degree to which theorists take concepts, issues, or problems from the practice of human rights to set the agenda for a theory of human rights. Practice-insensitive approaches, by contrast, frame their agenda largely in terms of existing philosophical problems that are independent of the practice. For a practice-sensitive approach in this sense, the subject of theoretical analysis would be drawn from current human rights practice; for example, as James Nickel writes, the subject of his analysis is human rights understood as “the rights of the lawyers, not the rights of the philosophers” (Nickel 2007, p. 7).

1 2

See, for example, Liao and Etinson 2012. While my use of the idea of practice-sensitivity is similar to at least some intended meanings of the contrast between ideal and nonideal theory, I (mostly) eschew those labels here so as to avoid confusion.

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A second, related sense in which an approach may be more or less practice-sensitive is in setting the aims of the theory. The primary aim of a practice-sensitive approach in this sense would be to solve some problem arising within the practice, such as a justificatory question about some aspect of the practice or a problem faced by agents working within the practice. To help differentiate this form of practice-sensitivity from the agenda-setting sense, consider Nickel’s description of different stages of justifying human rights: The most basic stage involves trying to identify and justify the abstract values or norms that underlie human rights. The second stage involves trying to show that some specific norms follow from these abstract considerations, and that these norms are plausibly conceived as universal rights . . . A third stage of justification involves defending the measures that will be necessary to protect and promote human rights internationally. (Nickel 2007, p. 3)

This differentiation of stages of justifying human rights suggests that, even if the concept of human rights that sets a theorist’s agenda is drawn from the practice, the overall aims of the theory may be more or less practice-sensitive, depending on whether the inquiry focuses on articulating abstract values or aims to propose particular policies to implement human rights. Thus, even a view that is decidedly practice-sensitive at the agenda-setting stage may be more or less practice-sensitive in its analysis. Griffin’s project, described above, is practice-insensitive at both stages of theorizing. Consider Griffin’s description of his agenda as “looking for the notion of human rights that fits into the best ethics that we can establish . . .” (Griffin 2008, p. 2). This description makes clear that Griffin’s theoretical goal is to clarify the historical notion of human rights, where current practice may be relevant at the margins, but where the dominant mode of inquiry is abstract moral philosophy. By contrast, Beitz describes his own view in the following as concerned in the first instance with making sense of the practice: The approach I shall explore tries to grasp the concept of a human right by understanding the role this concept plays within the practice. Human rights claims are supposed to be reason-giving for various kinds of political action which are open to a range of agents. We understand the concept of a human right by asking for what kinds of actions, in which kinds of circumstances, human rights claims may be understood to give reasons. (Beitz 2009, pp. 8–9)

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Similarly, Allen Buchanan writes that the goal of his project is “to try to make sense of the practice, and especially of its international legal core, and to do so in a critical way” (Buchanan 2013, p. 5). While these descriptions are brief, hopefully they convey clearly enough the overall distinction. One way to summarize this distinction is to note that it does not seem an overstatement to say that Beitz’s, Nickel’s, and Buchanan’s projects cannot be accurately described without referencing current human rights practice, while this is not true of Griffin’s project. 1.2.2 Moral vs. Political Approaches A second methodological distinction concerns the normative resources that structure a theorist’s analysis. The distinction I’m most concerned with for present purposes is between approaches that utilize or develop a theory of moral human rights or of interpersonal morality, as contrasted with those wielding or developing political conceptions of justice or otherwise institutional forms of moral appraisal. This contrast can be illustrated via a familiar distinction articulated by Thomas Pogge. According to Pogge, the primary responsibility regarding human rights, for both individuals and governments, is “to work for an institutional order and public culture that ensure that all members of society have secure access to the objects of their human rights” (Pogge 2008, p. 71). This contrasts with what he calls “interactional” views, according to which “governments and individuals have a responsibility not to violate human rights” (Pogge 2008, p. 71). Interactional views of human rights, then, are basically views about interpersonal morality or ethics, while institutional views are concerned with political morality or justice (Pogge 2008, p. 176). Rawls analyzes human rights in specifically political terms, though for Rawls the political analysis has to do with the role that human rights play in structuring a conception of international justice (or, more precisely, a just foreign policy for liberal and decent peoples). In contrast to political views, Griffin’s approach exemplifies a particular kind of moral theorizing about human rights: namely, theorizing that assumes that the primary moral concept relevant to the idea of human rights is the traditional idea of a moral human right. Such views generally take the idea of a moral human right to be foundational to thinking about any other question regarding human rights (such as, for example, which human rights there are, which human rights should be recognized in international law, who bears the correlative duties for human rights, etc.).

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Some views combine elements of moral and political perspectives. For example, James Nickel uses the idea of a moral right to explicate the idea of human rights, but he argues that “human rights are primarily political norms rather than interpersonal standards. They are standards of decent governmental conduct and mainly speak to social and political leaders and institutions. Governments are their primary addressees” (Nickel 2007, p. 10). This demonstrates that the distinction between political and moral views, as I understand them, is (like the distinction between more and less practice-sensitive views) a matter of degree, partly because political morality is a subset of morality generally, so ideas like moral rights can be applied in both interpersonal and political contexts. I therefore submit that there are at least two crosscutting distinctions to track in taxonomizing the different methodologies of philosophizing about human rights: One is the distinction between practice-insensitive theories, which set their aim and agenda primarily by reference to philosophical problems independent of existing human rights practice, and practice-sensitive (or practical) theories, which allow the practice to set the theoretical agenda. The second is a distinction between moral views, which analyze human rights using conceptual resources appropriate for interpersonal or noninstitutional morality, and political views, which prioritize the political significance of human rights and deploy philosophical resources characteristic of theories of political justice. 1.3 RECLASSIFYING PROMINENT VIEWS

Applying these distinctions to prominent views in the philosophy of human rights results in a more nuanced classification than the one yielded by the existing taxonomy. In particular, key methodological differences emerge among the views commonly classified as “political” approaches. As I noted earlier, Beitz and Raz are typically classified along with Rawls as “political” theorists. Indeed, both Beitz and Raz take Rawls’s account of human rights to be an example of (and even inspiration for) their own respective approaches. As Raz argues, Rawls’s approach to human rights is “the best known, though extremely sketchy, political account of human rights” (Raz 2010, p. 328). Raz, following Rawls, argues that “while human rights are invoked in various contexts, and for a variety of purposes, the dominant trend in human rights practice is to take the fact that a right is a human right as a defeasibly sufficient ground for taking action against violators in the international arena . . .” (Raz 2010, p. 328). Similarly, Beitz derives his approach from what he considers the “basic insight” of Rawls’s approach to human rights in The Law of Peoples:

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This insight, as I have described it, is that we might frame our understanding of the idea of a human right by identifying the roles this idea plays within a discursive practice. We attend to the practical inferences that would be drawn by competent participants in the practice from what they regard as valid claims of human rights. (Beitz 2009, p. 102)

In Rawls’s account of human rights, as Beitz notes, “[t]here is no appeal to any independent philosophical conception of a human right” (Beitz 2009, p. 99). Instead, Rawls defines the concept of human rights in terms of the political functions that concept serves in international relations. In my view, however, classifying Rawls, Beitz, and Raz in the same camp is misleading, both because of the substantive differences between Raz’s and Beitz’s own approaches and the fact that Rawls does not actually develop a theory of human rights as such (or so I shall argue). Consider Rawls’s view of human rights. The point of the first part of Rawls’s Law of Peoples is, as Rawls notes, to develop “an ideal conception of a Law of Peoples for the Society of well-ordered Peoples, that is, liberal and decent peoples. That conception is to guide these well-ordered peoples in their conduct toward one another and in their designing common institutions for their mutual benefit” (Rawls 1999, p. 89). To this end, Rawls argues that the primary role of human rights in international relations in the late twentieth century was to justify emerging limitations on state sovereignty, which had traditionally been understood to include both the right to pursue state aims via warfare and the right to complete autonomy regarding how a state treats its own citizens. He therefore defines human rights as those rights that, when recognized, restrict these traditional prerogatives of state sovereignty. For his purposes (developing an ideal conception of international law), Rawls decides to “leave aside the many difficulties of interpreting these rights and limits, and take their general meaning and tendency as clear enough. What is essential is that our elaboration of the Law of Peoples should fit these two basic changes, and give them a suitable rationale” (Rawls 1999, p. 27). Ultimately, then, this rationale is provided in Rawls’s ideal theory by human rights, which he relies on to mark the difference between decent and outlaw peoples (both terms of art within Rawls’s theory), and hence between peoples that deserve toleration from liberal and decent peoples and those that don’t (that is, those that enjoy traditional sovereign rights against interference and those that don’t) (Rawls 1999, p. 80). Notice, however, that in developing this conception of human rights, Rawls refers only to one aspect of a common understanding of the relationship between human rights and state sovereignty and then turns this into the

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defining function of human rights within his larger theory. It seems fair to say that Rawls’s aim here is not so much to develop a theory of human rights at all, but rather to use a particular characterization of human rights (albeit one that “fits” a certain aspect of human rights practice) to help develop an ideal theory of international justice. Partly for this reason, Rawls’s further development of a concept of human rights seems inconsistent with a practice-sensitive approach, in two respects. First, limiting sovereignty is not the only role that human rights play in international politics. As Beitz notes, Rawls’s characterization leaves no room for understanding “human rights as entitlements enforceable in national constitutions” and “does not incorporate the broad array of noncoercive political and economic measures used by states and international organizations to influence the internal affairs of societies where human rights are threatened,” among other omissions.3 Second, Rawls (again, seemingly against the spirit of practice-sensitive views) doesn’t consult the practice in further developing his characterization of human rights as “necessary conditions of any system of social cooperation. When they are regularly violated, we have command by force, a slave system, and no cooperation of any kind” (Rawls 1999, p. 68). As a number of theorists have pointed out, there’s not much by way of practical support to be found for this characterization, and moreover, Rawls does not seem interested in providing such support. The force of this analysis is, I submit, that we should consider Rawls’s view a practice-sensitive one in only the thinnest and most abstract sense. On Beitz’s construal, for example, “[a] practical conception takes the doctrine and practice of human rights as we find them in international political life as the source materials for constructing a conception of human rights. It understands questions about the nature and content of human rights to refer to objects of the sort called ‘human rights’ in international practice” (Beitz 2009, p. 102). This is clearly not Rawls’s methodology; while Rawls notes that it is commonplace within human rights practice to understand human rights as limiting state sovereignty, he does not treat the rich and complex human rights practice as “source materials” for constructing his conception of human rights. As Beitz notes, “Rawls makes no reference to the history of thought about international human rights, to other contemporary views about them, or to the nature and development of international practice. The role of human rights in the Society of Peoples is simply stipulated” (Beitz 2009, p. 101). 3

For a consideration of other roles that human rights play in international politics, see Beitz 2009, p. 100.

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My point here is not to criticize Rawls’s view for being insufficiently responsive to the practice. Rather, I want to point out an important methodological distinction: While both Rawls and Beitz allow the political role of human rights in international practice to set at least the parameters for a conception of human rights (and therefore are both “political” views in Raz’s sense), the two views are distinguished by their very different levels of sensitivity to the practice regarding the concept of human rights analyzed in their respective theories. While Rawls’s project is one in ideal (practiceinsensitive) political theory, Beitz’s project aims to make sense of human rights practice itself on its own terms. While both approaches are political, they are nonetheless importantly distinct due to their different degrees of responsiveness to the practice. It is worth noting here that the existing taxonomy seems to treat the labels “practical” and “political” as nearly interchangeable. This is likely based on the assumption that it is only from a practice-sensitive perspective, or an approach that attempts to be responsive to the practice, that specifically political considerations become relevant to the philosophy of human rights. But this is a mistake, as my analysis of Rawls’s view shows: Rawls takes a distinctively political approach, despite developing a view that is in important respects insensitive to existing practice. Similarly, I submit that Raz’s view does not fit comfortably alongside either Rawls’s or Beitz’s, because it is not in fact political in the same way as the other two. To see this, consider Raz’s approach in a bit more detail. After assigning to human rights the political function of limiting sovereignty, as does Rawls, Raz goes on to critique the rights identified in international human rights law in terms of whether they are properly considered moral rights at all. As Raz argues, International law is at fault when it recognises as a human right something which, morally speaking, is not a right or not one whose violation might justify international action against a state, as well as when it fails to recognize the legitimacy of sovereignty-limiting measures when this violation of rights morally justifies them. (Raz 2010, p. 329)

In other words, rather than conducting his normative analysis of human rights in recognizably political or institutional terms, Raz instead follows traditional approaches in analyzing human rights as moral rights. On this measure, then, and perhaps surprisingly, Raz and Griffin share a key methodological similarity, insofar as both conduct their normative analysis of human rights primarily in moral terms.

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A further wrinkle deserves consideration also: despite Raz’s view that international legal human rights should be justifiable as moral human rights, the moral considerations that Raz uses to justify the existence of particular moral human rights include various considerations about international politics, including whether states should enjoy immunity from criticism regarding their conduct relevant to the right (Raz 2010, p. 331). Thus, Raz’s view both allows the practice to set the agenda for theorizing and builds practical considerations into the moral reasoning establishing the existence of moral human rights. In this way, Raz’s approach is importantly methodologically distinct from Griffin’s, despite the fact that one of the primary philosophical resources both theorists use in their analysis is the idea of a moral human right. This difference is captured by Raz’s assertion that human rights “lack a foundation in not being grounded in a fundamental moral concern but depending on the contingencies of the current system of international relations” (Raz 2010, p. 336). In other words, while Raz’s view is structurally a moral one, as I’ve defined that label, it is a more practice-sensitive moral view, where even political aspects of the practice inform the moral analysis. 1.4 METHODOLOGICAL PLURALISM

I argue in this section that there is a limit to how successful any efforts at reconciling different methodologies will be. One relatively superficial reason for this is that, if my argument so far is correct, then current reconciliation efforts are working with a misleadingly simplistic taxonomy, with the result that the task of reconciliation looks easier than it actually is. But another, more important reason is that at least some methodological differences reflect deeper disagreements about the appropriate aims or goals of a philosophy of human rights. To the extent that different methods are appropriate for different ends, then we should not expect methodological disagreements to be resolved without narrowing the range of questions and contributions regarding human rights that philosophers are pursuing. In this section, I first consider attempts to reconcile different perspectives using the received taxonomy, arguing that these efforts are hampered by their reliance on the current inadequate taxonomy. I then turn to the project of articulating the different understandings of what philosophy of human rights is for that I believe underpin different methodologies. This points to the way toward my conclusion: that there will likely be no single best approach to the philosophy of human rights because the philosophy of human rights is not a single, monolithic enterprise, but rather includes a plurality of approaches that serve different purposes. One caveat to this pluralism is that, while there

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may be no point to trying to dissolve at least some methodological disagreements, at least while deeper disagreements about the aims and contributions of philosophical approaches to human rights remain, it may nonetheless be worthwhile for theorists to reflect more self-consciously on what we take to be the point of developing a philosophy of human rights. 1.4.1 Assessing Methodological Disagreements One problem with an overly simplistic taxonomy is that it can obscure real differences among views classified within the same taxonomic group, leading to erroneous inferences about whether and how to resolve methodological disagreements. For example, S. Matthew Liao and Adam Etinson recently argued, as one small component of a larger reconciliation argument, that “Naturalistic conceptions of human rights can accommodate two of the most salient concerns that proponents of the Political Conception have raised about them” (Liao and Etinson 2012, p. 327). In framing their argument, they describe political views as those “committed to understanding the distinctive nature of human rights in light of their role or function in modern international political practice” (Liao and Etinson 2012, p. 329). Following the standard taxonomy, this description runs together what I’ve called practicesensitive views (in the agenda-setting sense) and political views (which utilize distinctively institutional or political normative concepts as an essential part of the analysis). Also following the standard taxonomy, this camp includes Rawls, Raz, and Beitz. One of the concerns about naturalistic views (from the perspective of political views) that Liao and Etinson address is “the concern about ordinary moral reasoning.” This concern stems from Rawls’s argument against justifying human rights on the basis of “a theological, philosophical, or moral conception of the nature of the human person” (Rawls 1999, p. 81). For my purposes, it is significant that Liao and Etinson’s first pass at addressing this concern, in defense of naturalistic theories, depends crucially on the premise that Raz and Rawls are committed to the same methodology. Having accepted that premise, they note that, unlike Rawls, “Raz is not averse to using ordinary moral reasoning when developing an account of human rights even though he is an adherent of the Political Conception” (Liao and Etinson 2012, p. 334). Since Raz, understood here as a political theorist like Rawls, nonetheless does not “agree that ordinary moral reasoning ought to be avoided” in justifying human rights, then perhaps, they argue, this is one point in favor of the idea that such reasoning is more “shareable” than Rawls suspected, and therefore,

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this point might not constitute so high a barrier as one might suppose to reconciling the two approaches. On my taxonomy, of course, the fact that Raz is not averse to “ordinary moral reasoning” is not at all surprising, since his theory of human rights so centrally utilizes the concept of moral rights. If anything, the political elements of Raz’s account of moral human rights are further evidence that the distinction between moral and political views lies on a continuum, rather than being separated by a bright line. What is decidedly not supported, in my view, is the assumption that we might infer from Raz’s acceptance of “ordinary moral reasoning” that Rawls’s political view might also be reconciled to it.4 A related worry about deploying an overly simplistic taxonomy is that, where the received taxonomy doesn’t really capture the full range of methodological disagreement, theorists run a serious risk of defining the different camps in misleading terms. Some theorists, for example, contrast practical/political views with “naturalistic” or “humanist” approaches, where the latter are understood as those committed to the “timelessness” of human rights. One source for such an understanding is John Simmons, whose approach defines the “naturalistic” approach in Beitz’s treatment of it. According to Simmons, human rights are defined in terms of traditional natural rights: Human rights are those natural rights that are innate and that cannot be lost (i.e., that cannot be given away, forfeited, or taken away). Human rights, then, will have the properties of universality, independence (from social or legal recognition), naturalness, inalienability, non-forfeitability, and imprescriptability. Only so understood will an account of human rights capture the central idea of rights that can always be claimed by any human being. (Simmons 2001, p. 185, quoted in Beitz 2009, p. 49)

This understanding of human rights has found its way into some reconciliationist arguments as a defining feature of views that practical/political ones oppose. Liao and Etinson, for example, describe such views, explicitly following Simmons, as holding that human rights are “rights possessed by all human beings (at all times and in all places), simply in virtue of their humanity” (Liao and Etinson 2012, p. 328). Similarly, Pablo Gilabert describes humanist approaches (which he contrasts with the “political” views he attributes to Bietz, Rawls, and Joshua Cohen) as holding that “human rights are preinstitutional claims that individuals have against all other individuals in virtue of interests characteristic of their common humanity” (Gilabert 2011, p. 440). 4

Again, this is only a small point in Liao and Etinson’s larger argument, which I do not have room to address more fully in this chapter.

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In my taxonomy, such views represent a particular kind of moral view. Importantly, more practical moral views, along with political views, will object to this methodology. James Nickel, for example, argues from the perspective of his practical view that “[s]pecific human rights are only as timeless as the specific problems they address” (Nickel 2007, p. 38). Similarly, Allen Buchanan’s view, for example (which I discuss in more detail below), is a practical one which argues in favor of a complex form of moral assessment of the international human rights system – but in no way assumes that human rights are timeless moral claims (Buchanan 2013). Characterizing methodological disagreements as revolving around one particular point of difference therefore obscures the wider range of approaches that philosophers are in fact pursuing. 1.4.2 Varieties of Practical Theorizing Philosophers who follow Simmons in theorizing human rights as a form of traditional natural rights seem to assume that the primary, distinctive, or perhaps only task of the philosophy of human rights is to generate a comprehensive, systematic theory of human rights that answers various conceptual constraints that emerge from the history of moral and political thought (as Griffin, for one, makes clear in outlining his approach). One motivation for pursuing this approach might be the conviction that a systematic theory of human rights is essential to any responsible deployment of the idea of human rights in the world – for example, that in order to be justified, any human rights practice, or even any claims about human rights, would need to refer to some such philosophical theory of human rights. Allen Buchanan criticizes this approach for accepting what he calls the “mirroring view,” which holds that “the standard or typical justification for an international legal human right must appeal to an antecedently existing, corresponding moral human right (while allowing for the possibility that some justified international legal human rights are specifications of more abstract moral human rights or valuable instruments for realizing moral human rights)” (Buchanan 2013, pp. 50–1). Buchanan argues that the mirroring view commits the fallacy of assuming that “the purpose of human rights practice is to realize a set of preexisting corresponding moral human rights,” when in fact, he argues, assuming that there exists a defensible set of abstract moral human rights is neither necessary nor sufficient for justifying (something like) current human rights practice (Buchanan 2013, p. 52). On one hand, I want to blunt some of the force of Buchanan’s criticism of the mirroring view. One might be concerned that any theorist who subscribes

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to this general view must be problematically insensitive to the practice. Theorizing starting from a set of preexisting moral rights may be dictated entirely by abstract philosophical preoccupations, which may or may not address the concerns of international human rights law on its own terms. This criticism of the mirroring view reflects one standard criticism against traditionalist approaches like Griffin’s, namely that, in Raz’s words, they “fail either to illuminate or criticize the practice” (Raz 2010, p. 324). But, as we have seen, Raz’s moral approach, which Buchanan sees as committed to the mirroring view, centrally incorporates at least certain features of the politics of human rights, referring crucially (for example) to moral considerations important enough to justify limiting sovereignty as one of the justifying features of a moral human right. Therefore, attributing the mirroring view to both Griffin and Raz obscures important differences between their views, and therefore is of only limited assistance in suggesting how to move the field forward toward better methodologies. However, I endorse Buchanan’s larger point, which can be understood as the admonition that individual theorists should remain attentive to the wider landscape of inquiry about the full range of questions regarding human rights, and resist the temptation to what Buchanan calls “conceptual imperialism” about human rights (Buchanan 2013, p. 10). As I see Buchanan’s argument for this, he thinks that there are essentially two competing concepts of human rights (a philosophers’ concept (human rights as moral rights) and the concept of human rights as international legal human rights), and that a theorist might legitimately choose to theorize about either one, so long as she does not draw any unwarranted conclusions about the other. I endorse this argument against conceptual imperialism, but I want to expand it: even within the different domains (moral or political philosophy and international law), there are multiple ways of understanding the concept of human rights that are illuminating or productive for different purposes. More broadly, it is important not to conclude from Buchanan’s critique of the mirroring view that any analysis of moral human rights is entirely irrelevant to the practice. For his part, Buchanan concludes only that “some and most likely many international legal human rights will not be legal counterparts of moral human rights” (Buchanan 2013, p. 21). This, of course, still leaves room for the idea of moral human rights to play a role in explaining the moral significance of the human rights practice overall, as well as playing a role in articulating or justifying some particular legal human rights. Moreover, if the practice includes activism on behalf of human rights, then we may need a theory of moral human rights to explain how human rights figure in the agendas of particular activist groups. Finally, Griffin argues that

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an understanding of moral human rights can inform the interpretation of international human rights law; while he may be mistaken, to my knowledge not enough attention has yet been paid to this aspect of the practice to dismiss this argument without careful consideration (Griffin 2008, pp. 204–5). Buchanan’s own project is a very deeply practical one; from his perspective, the range of relevant questions for philosophical analysis concerns whether (and if so, how) something like the existing system of international human rights law can be provided with an adequate normative justification. For this purpose, Buchanan recommends a pluralistic justificatory strategy: articulating of the wide variety of benefits that can be realized by implementing a system of international human rights law, articulating reasons that particular international actors (notably states) have for supporting such a system, and assessing the possible moral defects of such a system (Buchanan 2013, chapter 3). However, even Buchanan’s detailed account of this practical inquiry demonstrates the need for theorists interested in human rights to articulate conceptions of human rights in relation to other questions in moral and political philosophy, such as (to select from some of the larger issues that feature in Buchanan’s larger argument) the moral status of persons, the difference between justice and legitimacy, ethical pluralism, and the nature of law. Deciding among competing accounts of these related ideas may convince us to rethink our particular conceptions of which normative resources would best contribute to our overall understanding of some aspect of human rights practice. For this reason, then, even a practice-sensitive approach to the philosophy of human rights will want to attend to more abstract theorizing about related philosophical questions. I take Buchanan’s project, then, to support not only the pluralistic justificatory methodology that he recommends for thinking about how to justify human rights practice but also the broader methodological pluralism I’m recommending in this chapter: that rather than defending a single perspective as the “right” one to take in theorizing about human rights, theorists working with different methods on different justificatory questions might ultimately all contribute to the best understanding of human rights theory and practice. 1.4.3 Ideal Theory As mentioned earlier, it has been widely argued that an ideal moral theory of human rights – so, a traditionalist view like Griffin’s – cannot (in Raz’s words) illuminate or criticize the practice. However, it is less well recognized that a conception of human rights based entirely on a single political function of human rights in international politics may be similarly unhelpful in

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illuminating or criticizing other aspects of human rights law or practice. An ideal political theory, even one that takes seriously the international politics of human rights, or at least some aspects of it, might end up being structured around particular features of human rights practice that are not a good fit for understanding other aspects of the practice.5 (I take it that Rawls’s theory in Law of Peoples is an example.) Taking such a theory to fix the terms of a comprehensive theory of human rights would be unreasonably limiting for an analysis of the appropriate practical functions of human rights. One reason an ideal theorist might offer in defense of constructing a single, narrowly defined conception of human rights is that it serves the practical aim of internal consistency within the practice. But internal consistency or coherence will itself need to be carefully balanced against other aims of the practice. (Indeed, it would be difficult to find a social practice or institution with one, unified, structuring purpose.) While assessing the coherence of the practice is one important goal of philosophical critique, philosophical inquiry might also identify values that the practice serves, while also bringing to light conflicts of values among different agents within the practice, problems or challenges facing certain practitioners, external pressures on the practice as a whole, and forces within the practice that aim to transform (or reform) it. Philosophers with any interest in these or other more practical issues may find a narrow definition of human rights developed for the purposes of ideal theory rather too confining and restrictive to be helpful. At least by itself, then, any project in ideal theory, either of the moral or political sort, will not only be an insufficient basis for a normative analysis of the practice but may actually obscure or distort normative questions that arise within the practice itself, depending on how it fixes the terms of analysis. For this reason, theorists’ assumptions about the proper role of ideal moral or political theory within the philosophy of human rights should themselves be carefully analyzed. In particular, philosophers should be wary of accepting too stringently any idealized conception of human rights as their reference point for more concrete applied questions arising from within the practice, and philosophers working in more idealized modes should resist the temptation to try to solve practical questions directly using ideal theory. Moreover, and importantly for my purposes, it suggests that theorists with different theoretical projects should not assume that their own conception of human 5

In order to avoid confusion, I have so far mostly avoiding using the label “ideal theory,” preferring instead to talk about more or less practice-sensitive views. However, at this point it is useful to re-introduce the label to describe a form of theorizing that aims to articulate a moral goal or ideal. This sense corresponds to what Laura Valentini calls “end-state” theorizing (Valentini 2012).

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rights – that is, the one that works for their project – should be considered the “correct” understanding of human rights by other theorists with different projects. In this light, it may be worth recalling that both Raz and Beitz initially consider Rawls to be the inspiration for their respective approaches, despite the fact that they both go on to critique Rawls’s theory fairly strongly from the perspective of the methods they defend. I would argue that this was partly due to their failure to notice the differences between Rawls’s project and their own. Rawls was not failing at developing a practical conception of human rights, and it is misleading to criticize him as if he were. However, instead of rejecting his view as irrelevant to the practice, we should recall that Rawls’s ideal theory has contributed a great deal to our understanding of the international political landscape within which human rights play a role. In particular, Rawls’s Law of Peoples moved forward our abstract understanding of the problems of sovereignty, international intervention, and toleration, which, as he argued, are intimately connected with the role of human rights in international politics. While Rawls wasn’t trying to produce a theory of human rights per se, then, his broader theory of international justice can help us understand such neighboring concepts better, and how the idea of human rights can play a role in such a larger theory. This can improve work more directly focusing on the philosophy of human rights and international human rights law, in terms of understanding not just whether the existing practice of human rights law (or something like it) is justified but also how we might want the practice to develop in a more just world (and, indeed, whether it (or something like it) would have a place at all in such a world). For these reasons, philosophers interested in human rights practice should not be tempted to eschew ideal theorizing altogether, on grounds that it is not of immediate practical relevance. Rather, we should better appreciate the distinct but interdependent contributions that both more and less practicesensitive approaches can make to a better understanding of human rights. 1.5 CONCLUSION

I conclude from this brief survey that we should not assume that a particular methodology will emerge as the best one, all things considered. This is because different kinds of theorizing can yield different kinds of insights relevant to particular philosophical projects or to various aspects of the practice. However, I’m also not recommending that we tolerantly let a thousand methods bloom, unconcerned with each other. This is not only because individual theorists can be mistaken about the implications of their

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methodology, in particular about what conclusions are and are not legitimately supported by their methods, but also because the best-supported conclusions from different methodologies will have implications for the range of supportable conclusions to other investigations using different methodologies. The pluralism I’m advocating in this chapter is therefore a methodological pluralism, grounded in a recognition of a deeper pluralism of legitimate understandings of what ends the philosophy of human rights might serve. Philosophers of human rights need not all subscribe to the same view of what (or even who) the philosophy of human rights is for; we may legitimately aim to advance different discourses in different ways. But we should certainly start acknowledging more explicitly that we disagree about this most basic of questions, and then more self-consciously attend to the different methodologies, goals, and terms of success that are appropriate to the diverse projects that are defined by our answers to this question. BIBLIOGRAPHY Beitz, C. (2009) The Idea of Human Rights, New York: Oxford University Press. Buchanan, A. (2013) The Heart of Human Rights, Oxford: Oxford University Press. Cohen, J. (2004) “Minimalism about Human Rights: The Most We Can Hope For?” Journal of Political Philosophy, vol. 12 no.2, pp. 190–213. Gilabert, P. (2011) “Humanist and Political Perspectives on Human Rights,” Political Theory, vol. 39 no. 4, pp. 439–67. Griffin, J. (2008) On Human Rights, New York: Oxford University Press. Liao, S. M. and Etinson, A. (2012) “Political and Naturalistic Conceptions of Human Rights: A False Polemic?” Journal of Moral Philosophy, vol. 9 no. 3, pp. 327–52. Nickel, J. (2007) Making Sense of Human Rights, 2nd edition, Malden, MA: Blackwell. Pogge, T. (2008) World Poverty and Human Rights, 2nd edition, Cambridge: Polity Press. Rawls, J. (1999) The Law of Peoples, Cambridge, MA: Harvard University Press. Raz, J. (2010) “Human Rights without Foundations,” in Besson, S. and Tasioulas, J. (eds.), The Philosophy of International Law, New York: Oxford University Press, pp. 321–37. Simmons, A. J. (2001) “Human Rights and World Citizenship: The Universality of Human Rights in Kant and Locke,” In Simmons, A. J. (Ed.), Justification and Legitimacy: Essays on Rights and Obligations, Cambridge: Cambridge University Press. Tasioulas, John (2017 Forthcoming) “Exiting the Hall of Mirrors: Morality and Law in Human Rights.” In Campbell, Tom and Bourne, Kylie (Ed.), Confronting Moral, Political and Legal Approaches to Human Rights, Routledge. Valentini, L. (2012) “Ideal vs. Non-ideal Theory: A Conceptual Map,” Philosophy Compass, vol. 7 no. 9, pp. 654–64.

2 The Point of the Practice of Human Rights International Concern or Domestic Empowerment? Johan Karlsson Schaffer

2.1 INTRODUCTION

How do international human rights norms shape actions and outcomes in global politics, and whom do they empower and authorize to act? In this chapter, I work within the political conception of human rights to challenge its central claim that international human rights chiefly provide standards for international conduct or reasons for interference. As Charles Beitz, a key proponent of the political conception, puts it, human rights are “matters of international concern”: They give reasons for outside agents to act when a state fails its first-hand responsibility to protect the rights of its residents. I shall offer a different view, on which international human rights are chiefly implemented and enforced through political action in the domestic sphere rather than in international society. International human rights norms authorize and empower individuals and groups to claim their entitlements and challenge governmental authority. This “domestic empowerment view,” as I shall call it, allows us to reconstruct the practice of international human rights in a way that can make better sense, compared to the dominant political conception’s “international action view,” of salient features of that practice, such as the importance of legalization, the idea of equal status that animates many human rights, and the constructive role international human rights norms play in societies where the rule of law and democracy are generally respected. The chapter thus seeks to contribute to current literatures on the philosophy of human rights in three ways. First, it offers an alternative to the dominant political conceptions of human rights, which shares their approach of building a theory of human rights from existing practice rather than from moral theory, I wish to thank Claudio Corradetti, Daniel Corrigan, Asbjørn Eide, Aled Dilwyn Fisher, Andreas Føllesdal, Reidar Maliks, Amrei Mu¨ller, Luise Mu¨ller, Matthew Saul, and Geir Ulfstein for their constructive comments on earlier versions of this chapter.

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yet shows that it can yield different views of, for instance, the role of legalization, external action, and individual empowerment. Hence, this comparison helps define the contours of important methodological problems of critically interpreting human rights practice, which are the subject of an emerging literature (Karp 2013; Schaffer 2014). Second, while others have criticized political conceptions for focusing too narrowly on international intervention (e.g. Nickel 2006; Tasioulas 2009; Valentini 2012), I add to this literature by presenting a positive account of an alternative political-practical view. I have previously suggested focusing on struggles for rights in domestic politics as a modification of the discourse-theoretic conception of human rights (Schaffer 2015) and here elaborate this view further in relation to another strand of the political approach to human rights. Relatedly, third, I seek to connect the philosophy of human rights with recent work on human rights in international political theory, which provides important resources for a political-practical approach to human rights, yet the two strands of literature only too rarely speak to one another. The chapter is structured in four parts. First, I outline the practical approach offered by Charles Beitz, as the most comprehensive, detailed attempt at offering a political conception of human rights that carefully interprets the existing legal-political discourse. I point out how his view neglects the agency of rights-bearers and fails to convincingly support the claim that human rights conceptually are matters of international concern. Second, I introduce the domestic empowerment view. Like Beitz’s international action view, this view locates the practice through key international human rights treaties, but unlike him holds that the practice is chiefly implemented and enforced through political action in the domestic sphere, rather than through international action. Third, I further explore how the domestic empowerment view differs from the international action view: It sees the legalization of human rights and their power-mediating function as crucial, and connects this function to claims for equal status. Moreover, thinking of human rights as power-mediators makes the domestic empowerment view less institutionally contingent and allows us to explore the constructive role they play in stable, liberal-democratic states, too. I conclude by reflecting on whether the two approaches are competing or complementary. Before we proceed, I want to make a prefatory note on method: How to interpret the practice of human rights? A common view holds that we, either as observers or as participants, can identify an idea, concept, value, purpose, or point that defines a social practice (cf. Karp 2013; Meckled-Garcia 2013; Valentini 2011). Understanding that purpose or point would allow us to critically scrutinize a practice, for instance to settle controversies about what constitutes the practice and who is practicing it properly.

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However, the view that a practice is governed by a master purpose, idea, or function comes with at least three problems. First, as James Nickel points out, “human rights have features that make them unlikely to have a single function unless it is very abstract” (Nickel n.d.). Most importantly, everyone agrees that there are multiple human rights, which all have distinctive contents and functions and address different human needs. Second, social phenomena always admit of multiple true descriptions, and there is no easily available external point of view from which to show one description to be more apt than others (Shapiro 2005, p. 188). Third, some social practices – including the practice of human rights – seem to be constituted by concepts that are “essentially contested” – that is, they “inevitably involve endless disputes about their proper uses on the part of their users” (Gallie 1956). Hence, a practice may serve several aims or purposes, without a clear hierarchy among them, and participants and observers may often disagree about how to understand the purpose constituting the practice. Beitz (2009, p. 10) stresses how human rights practice sometimes seems to invite deep disagreement over its point and purpose, but he also presents a strong idea of what the point or purpose of that practice is: Human rights are norms that serve to protect urgent human interests against standard threats that they face in modern societies, and a state’s failure to respect those norms provides reasons for outside agents to act. I will challenge that idea and present an alternative to it, offering a “problematizing redescription” (Shapiro 2005, p. 201 f): an account which, by drawing attention to previously neglected features of social reality, can indicate new explanatory and justificatory questions for analysis. I shall, first, argue that Beitz’s way of portraying the practice of human rights fails to capture important features and, second, offer a re-characterization that addresses those failings. For the sake of clarity, my redescription will seek to refine, in a somewhat idealizing manner, what I take to be an important but neglected role that the practice of international human rights plays in contemporary politics, and elaborate what this role implies for a political conception of human rights. However, I do not claim this point to be the sole role or master function that can subsume all other functions. 2.2 HUMAN RIGHTS AS INTERNATIONAL CONCERN

In The Idea of Human Rights (2009), Charles Beitz presents a practical conception of human rights. As a comprehensive, book-length argument, it offers an historical interpretation of the existing international legal-political discourse

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of human rights, elaborates a distinct methodology for how to let this interpretation steer our normative reasoning about human rights, and applies this approach to what he suggests are hard cases, such as political rights, women’s rights, and rights against poverty. Hence, I shall take Beitz’s approach as an excellent starting point for a practical approach to human rights. In this section, I outline the approach and evaluate how Beitz, based on that method, describes the practice of human rights, before I proceed to offer a critical reformulation. The practical approach aims to derive the principles or values, in terms of which the practice of human rights is to be normatively assessed, from the existing practice itself, with all its complexities. The practice, on Beitz’s view, consists of a set of norms that regulate the behaviour of states together with a set of modes or strategies of action for which violations of the norms may count as reasons. [. . . It] exists within a global discursive community whose members recognize the practice’s norms as reason-giving and use them in deliberating and arguing about how to act. (Beitz 2009, p. 8)

The practical approach takes this real-existing practice as its starting point and assumes that we can understand what the concept of a human right is by carefully interpreting the role that concept plays within the practice: Human rights are supposed to be reason-giving for various kinds of political action which are open to a range of agents. We understand the concept of a human right by asking for what kinds of actions, in which kinds of circumstances, human rights claims may be understood to give reasons. (Beitz 2009, p. 9)

Importantly, the practical approach seeks to keep apart the question of the nature of human rights from questions about their scope and content. The practice, as it exists, provides us with the source material for answering the first question, which is descriptive and conceptual: What is a human right? Put differently, what role or function does the idea of a human right play in the contemporary practice? As a second step, we can use this conceptualization of the role or function of a human right to approach questions about the content of human rights (e.g. is there a human right to X?) or about their normative basis (e.g. what reasons do we have for acting on them?). In answering such questions, “we take the functional role of human rights in international . . . practice as basic: it constrains our conception of human rights from the start” (Beitz 2009, p. 102). This distinction is important in allowing the practical approach to be critical, rather than merely accepting at face value whatever we find in

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contemporary human rights doctrine. We should grant the practice this authority in guiding our thinking about what human rights are, Beitz (2009, p. 11) argues, because it exists, and if we want to understand the practice of human rights, we should learn from it when we seek to conceptualize its central terms. Moreover, at face value we should regard the practice as valuable, as it promises to protect important human interests against standard threats they face in a world of sovereign states. So what is the practice and its doctrine? Beitz locates the set of norms that govern the practice in the main international human rights instruments, starting with the Universal Declaration of Human Rights (UDHR, 1948) and the core international human rights treaties that were subsequently developed to give legal effect to the UDHR’s provisions, most important of which are the two Covenants on, respectively, civil and political rights (ICCPR) and economic, social, and cultural rights (ICESCR).1 These treaties have been widely ratified: Almost every state has ratified at least one of them, and 80 percent of states have ratified four or more. Of course, high ratification rates do not imply that states and other agents in the practice agree about the treaties’ scope and content, which is a further reason why we cannot consult the practice in order to answer such questions. Moreover, given that the practice is emergent and immature, there is no external point from which we can determine authoritatively, for instance, who is a proper practitioner of human rights. This indeterminacy complicates the interpretation of the practice, which sometimes serves to frame disagreement just as much as agreement (Beitz 2009, p. 9). This outline of the practice, however, helps to provide an initial notion of its doctrinal content. The treaties do not just translate the UDHR into the language of international law; they expand its content and detail. The resulting doctrine has a broad normative reach beyond mere minimal requirements and it lists quite heterogeneous rights, which open for different means of realization. Furthermore, human rights in the doctrine are obviously not timeless but relate to the social circumstances of modern life. Finally, through the successive treaties, the doctrine’s content has evolved and “extended its reach from a society’s constitution and basic laws to its public 1

Notably, Beitz (2009, p. 14) brackets the regional human rights systems and international humanitarian law in his interpretation of the practice. Reflecting on regional mechanisms, especially in Europe but also in the Americas, might perhaps have led him to appreciate both legalization and domestic enforcement, while contrasting the practice of human rights sensu stricto with international humanitarian and criminal law might have invited a less confident view of international political action for the protection of human rights in some of the most severe situations.

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policies and customs,” and this self-evolving capacity of the practice “could be important in forming an adequate grasp of its point” (Beitz 2009, p. 31). Having defined international human rights practice in terms of the UDHR and subsequent instruments, Beitz can hardly avoid concluding that the primary subjects upon which human rights put normative demands are states and their political institutions, laws, and policies: “States have the primary or ‘first-level’ responsibility to ensure the satisfaction of the human rights of their own residents” (Beitz 2009, p. 114). While powerful non-state agents may play important roles, only with statehood comes the responsibility to protect, promote, or respect human rights. However, on Beitz’s view, it is part and parcel of the concept of human rights, as definitive of contemporary human rights practice, that they are also matters of international concern that may provide reasons for outside agents to take action. Being matters of international concern is a conceptual feature of human rights and provides the functional role that steers our subsequent analysis of the scope, content, and justification of human rights. Whatever else is true of human rights, they are supposed to be matters of international concern in the sense that a society’s failure to respect its people’s human rights on a sufficiently large scale may provide a reason for outside agents to do something. (Beitz 2009, p. 105f; cf. Raz 2010, p. 332)

As the focus on reasons for action reveals, the practice consists of more than the norms defined in international treaties; it also comprises certain modes of action. The idea that human rights are matters of international concern also informs Beitz’s reconstruction of the mechanisms through which international human rights are implemented and enforced. While the founders of the international human rights regime imagined a juridical paradigm of implementation, Beitz (2009, pp. 23, 32) maintains, the regime as it de facto works today is mainly implemented through six other paradigms of implementation. He does not wholly reject the juridical paradigm, with international law treaties incorporated into national constitutions and law, and with international tribunals to watch over them – it has been realized, on his view, chiefly within the European Convention system and, to a lesser extent, in the United Nations treaty system. But the enforcement of international human rights is mainly achieved by six other mechanisms (I have ordered them differently than Beitz): (1) accountability (international human rights bodies and NGOs engage in reporting and monitoring of state compliance); (2) inducement (governments and international organizations can use rewards and sanctions – in diplomacy, trade, or aid, for instance – to encourage states

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to respect human rights); (3) assistance (foreign aid can also help states strengthen their capacity to meet their HR obligations); (4) compulsion (external agents can use force – from economic sanctions to military intervention – in order to impose HR compliance); (5) external adaptation (outside agents – powerful states, multinational corporations, or international regimes – sometimes need to change their own practices in order to facilitate compliance by a failing government); (6) domestic contestation (outside agents can influence a government’s conduct by mobilizing domestic actors to pressure their government). For Beitz (2009, p. 40), describing these six paradigms of implementation within the international human rights regime serves “to underscore how substantially its repertoire or measures diverges from the juridical paradigm” – specifically, in three respects: The practice is political, not juridical (a). The six other paradigms mostly operate in a political, rather than legal, register. Consequently, (b) the crucial causal agency lies with other types of agents (than the juridical paradigm’s international treaty bodies), who often act without specific legal authority. Most important among these non-juridical bodies are states, international organizations (in other issue-areas than human rights), and local and transnational civil society groups. Furthermore, (a) and (b) also imply, Beitz concludes, that (c) the actual implementation of international human rights does not depend on legalization or incorporation into national law and constitutions. While Beitz finds other mechanisms than juridical means more important for implementing international human rights, he does not systematically assess whether they also more effectively help international agents make recalcitrant states comply with international human rights norms. However, in practice he seems to hold serious doubts as to the efficacy of many forms of external action, as part of his analysis of whether women’s rights, rights against poverty, and political participation rights should be considered human rights proper. In the next section, I shall provide a different account of the implementation and enforcement of the practice; now let me conclude by indicating some problematic features of this view of how international human rights norms are brought to bear on states. First, who are the subjects supposed to act on human rights norms? On Beitz’s view, the principal agents of the practice and its implementation are states, international organizations, transnational civil society, and the occasional multinational corporation. And while he accords first-hand responsibility for human rights to states, governments seem to play at most a reactive part in responding to international action: they are objects of reporting, monitoring, assistance, or compulsion. Likewise, societal actors

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within states seem to play a subsidiary role at most, acting as a proxy for the international community, though Beitz (2009, p. 38) notes that sometimes domestic contestation happens without external involvement. Most conspicuously, however, he seems to exclude rights-bearers themselves from the range of agents for whom human rights give reasons to act. This neglects how international human rights discourse may transform the way in which people conceive of and express their grievances, and help them organize and mobilize to demand their rights. In the next section, I will offer a different image where rights-claimants have a key causal agency in realizing human rights. Second, does Beitz convincingly demonstrate that human rights are matters of international concern, if this is to include reasons for outside agents to interfere when a state fails to protect rights? In order to bolster that claim, Beitz points to both international human rights doctrine and the fact that states and other agents do act to promote human rights, but I find neither argument convincing. First, international treaties cautiously avoid giving external agents reasons to act when states fail to discharge their human rights obligations. Beitz (2009, p. 13) points to the UN Charter, but its stated purpose of seeking “international cooperation in . . . promoting human rights and fundamental freedoms” (Art. 1:3) is restricted by its principles of nonintervention and selfdetermination. Likewise, the UDHR, the two Covenants or other human rights treaties represent, by their mere existence, the idea that human rights are matters of international concern, but only in the sense that Beitz finds too weak: they articulate international standards, but do not grant other states, let alone the international community or transnational activists, any license to act if a state fails its first-level responsibilities for human rights. He also points to the fact that the treaties come with implementation machinery, e.g. monitoring procedures (Beitz 2009, p. 124f), but even such mechanisms are premised on the state party’s active acceptance and participation. Second, while Beitz (2009, p. 116) acknowledges that international human rights law does not authorize the types of international action he has in mind, he claims that they are “plainly visible in the practice of states, international organizations and nongovernmental organizations” as evidenced by an “extensive record of transnational political action short of the use of force aimed at protecting human rights” (Beitz 2009, pp. 116, 125). However, this argument seems to beg the question if we take it as a reason for why we should regard the international concern as the defining purpose of human rights practice. We may appreciate the fact that human rights norms sometimes engender transnational action (even as we cautiously recognize the possibility that such action also may serve other less noble purposes), but why should we see this feature as a necessary, let alone sufficient, defining feature of a human right?

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Without a compelling argument for why we should regard international concern as the definitive feature of human rights within the practice, Beitz (cf. 2009, p. 102) seems to be making the same mistake that he attributes to Rawls: He stipulates a role of human rights within the practice and lets that narrow role steer his normative evaluation of human rights. Moreover, even if he could provide evidence that this role were paramount in original intent, evolving doctrine, or political practice, why should we regard this particular function as the only relevant point or purpose determining what human rights are? If human rights, as the evolving doctrine details them, are heterogeneous, as are the means for their implementation, could not the practice be correspondingly pluralist in terms of the ideas defining what a human right is? In the next section, I shall offer one such idea as an alternative to Beitz’s. 2.3 HUMAN RIGHTS AS DOMESTIC EMPOWERMENT

Now, let me offer a different account of the practice of human rights: the domestic empowerment view. It shares with Beitz’s approach a view of human rights as an emergent social practice defined by a set of norms expressed in the main international human rights treaties, which seek to regulate the behavior of states and suggest modes of action, in case the norms are violated, to a dispersed community of social agents. Yet it differs in its view of the role of the idea of a human right within this practice: The basic point with human rights, on this view, is not just, or not even necessarily, to be a matter of international concern; rather, they are power-mediators that provide relatively weak social agents with normative resources for challenging political authority. Viewing human rights in the light of this function reveals a number of striking differences vis-a`-vis Beitz’s account: It emphasizes domestic rather than international action for their enforcement; it highlights the crucial role of legalization in that process; it makes sense of the status-egalitarianism inherent in rights discourse; it is less contingent on an international system of states; and it allows us to explore the role international human rights practice plays in stable, liberaldemocratic regimes, too. I shall explain the differences in that order: I begin by criticizing the idea that international human rights are, or should be, chiefly enforced or implemented through international action, and then suggest a view of the enforcement of human rights that instead emphasizes political action at the state level, whereby international human rights norms empower and authorize individuals and groups in domestic society to challenge governmental authority. In the next section, I discuss some attractive features, compared to other political conceptions, of this domestic empowerment view of the practice and what role the idea of a human right plays within it.

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The domestic empowerment view shares Beitz’s assumption that the practice of human rights is defined through the key instruments of international human rights law and that the primary addressees of those legal norms are sovereign states only. For instance, the two Covenants “create obligations only for states, and states have international human rights obligations only to their own nationals” and others under their jurisdiction (Donnelly 2002, p. 34). Yet, even as human rights norms are negotiated internationally and codified into international law treaties, their implementation and enforcement are mostly a matter of political action within states rather than in international affairs. It happens from the bottom up, through changes brought about by groups and individuals pursuing their goals within the institutions available to them, rather than from the top-down, through external influence by other states, multilateral organizations, or transnational activist networks. This is a central issue where the domestic empowerment view parts company with Beitz, which sets important terms for the ensuing normative reconstruction of the practice. In order to support this empirical claim about how international human rights norms make a difference, we may consult a dynamic social science research program on the politics of human rights in multilateral, bilateral, and transnational relations (for overviews, see Hafner-Burton 2012; Hafner-Burton 2014). First, international human rights treaties have multiplied since the adoption of the UDHR in 1948. Today, 80 percent of states have ratified four or more of the core UN treaties, and regional human rights mechanisms claim a total membership of more than 150 states (Schaffer et al. 2013, p. 1). Yet in spite of this dramatic increase, international human rights regimes continue to have limited authority over and impact on states’ human rights policies, and whatever influence they have is heavily conditional on domestic institutions and actors (Hafner-Burton 2012, p. 276). Specifically, participation in international human rights regimes tends to correlate with improved protection of many human rights in fully or partly democratic countries, but not in illiberal, nondemocratic states that deny or abuse human rights most severely. While more institutionalized regimes, such as international human rights courts, correspond to better human rights practices (Hafner-Burton 2012, p. 278), most international human rights regimes lack independent monitoring and enforcement mechanisms (Donnelly 2002, p. 172). States also participate for different reasons: Some governments ratify a human rights treaty because they share its goals or in order to lock in preferred domestic reform processes, while others use international human rights regimes to reduce pressure for internal change or even to signal their resolve not to comply (Hafner-Burton 2012). Unlike other types of global governance regimes, international human rights

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institutions typically create rather than resolve collective action problems (Schaffer 2013, p. 228). As a result, the regimes have to rely on the good will, self-criticism, and cooperation of the participating states. Second, social science research has found no clear evidence that bilateral international action – ranging from foreign aid to economic sanctions and military intervention – has a positive impact on human rights in target countries (Hafner-Burton 2014). As for coercive interference, other states are unlikely to retaliate abuses by a government against the rights of its citizens (Donnelly 2002, p. 178): Retaliatory inter-state action is costly, because leverage has to be imported from other areas, such as trade or aid; difficult to legitimize, since such means of retaliation are only indirectly tied to the violations; and risky, since it is much easier to produce great harm than great benefit through international interventions and sanctions. Indeed, there is no consensus in social science scholarship on economic sanctions and military interventions as to whether they help promote human rights or exacerbate violations (Hafner-Burton 2014). Just as the sticks of interference, the carrot of foreign aid is a blunt tool for influencing human rights in states where they are systematically neglected or violated, as other political and economic factors often play a much more important role in decisions on overseas economic assistance. In fact, many governments with an express commitment to human rights seem more likely to offer aid to states with widespread repression and terror than to less repressive governments (Hafner-Burton 2014). Finally, one should not overestimate the power of transnational activist networks and non-state actors to influence the policies of governments that disrespect or violate human rights (cf. Risse et al. 2013). Transnational activist networks may help to monitor government compliance and disseminate information and to name and shame abusive governments, but their importance is secondary compared to national political action (Schmitz 2004, p. 409). Transnational advocacy networks at best provide valuable backup for domestic opposition groups. To sum up, external enforcement of international human rights treaties is likely to be undersupplied, politically biased, and weak in securing compliance (Simmons 2009, p. 123ff). Thus, international action has limited relevance for the implementation of international human rights norms; rather, national politics is the key arena for the realization of human rights. So what are the means through which domestic enforcement takes place? Beth Simmons (2009, chap. 4) suggests three mechanisms through which international human rights treaties may alter domestic politics: First, they may effect elite-initiated agendas. The very question of whether to ratify or

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incorporate an international human rights treaty may force political elites to review the state’s laws, policies, and practices, and to consider issues that would otherwise not have surfaced on the political agenda. Second, they open for strategic litigation. Human rights conventions can provide opportunities for individual rights-claimants and their supporters to use domestic courts to pursue politically significant rights cases, at least if the treaties have status as domestic law and if the courts are relatively independent from politics. Third, they trigger broader mobilization. International human rights treaties provide political, legal, and social resources for individuals and groups who seek to hold governments to their promises. Activists may use the government’s explicit confession to an international law norm in order to improve the rights in which they have a stake. Importantly, these domestic mechanisms may have their greatest significance in transitioning states, where citizens have the motive to mobilize for individual rights and where the institutions of a semi-democratic society allow for challenging governmental policies without risking increased repression. 2.4 IMPLICATIONS OF THE DOMESTIC EMPOWERMENT VIEW

The domestic empowerment view, as I have presented it thus far, assumes that outside mechanisms for human rights enforcement will be weak, at best; however, by empowering and authorizing relatively weak agents in domestic society to challenge governmental authority, international human rights norms may have significant, if sometimes subtle, effects on politics. Now, let me spell out a few implications of this view, the ways in which it further differs from Beitz’s, and why I believe these differences count to its advantage as a political-practical approach to human rights. 2.4.1 The Importance of Legalization In the domestic empowerment view, for international human rights treaties to alter domestic politics in these ways, their legal form is crucial. It is no coincidence that international human rights norms are codified into treaties of international law. Thereby, they gain both status as law, since they are “embedded in a broader system of interstate rule-making, normatively linked by the principle of pacta sunt servanda,” and clarity, since the treaty format improves precision and focus, “making it clearer just what compliance requires” (Simmons 2009, p. 120). Furthermore, codifying human rights norms in the language of law also endows them with authority, distinguishing

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them from both power and morality, which offers an indispensable resource for human rights advocates (Donnelly 2006, p. 21). Rights-claimants can strategically use the fact that their government has committed, explicitly and publicly, to a global standard, acknowledged by virtually all states, in order to legitimate their claims for rights improvement (Simmons 2009, p. 15): For each of the three domestic compliance mechanisms, “an official commitment to a specific body of international law helps local actors set priorities, define meaning, make rights demands, and bargain from a position of greater strength than would have been the case in the absence of their government’s treaty commitment” (Simmons 2009, p. 126). Critics of a legal or juridical understanding of human rights sometimes suggest that the focus on legal codification and institutionalization, adjudication and litigation in courts, and punishment and compensation betrays the moral, aspirational character of human rights and limits their reformatory potential (e.g. Ingram 2009). Critics also claim that the legalism of rights claims closes off political debate or turns the issues at stake irreconcilable, by making demands non-negotiable (Ignatieff 2001, p. 20). Beitz shares this skeptical view of legalization. He suggests that we should think of human rights as background norms, that is, critical standards that various agents can appeal to when they criticize governmental policies, but not as legal rules, because their would-be legal status does not determinately settle the reasons for acting on them and because members of the discursive community will reasonably disagree about their basis, content, and application (Beitz 2009, p. 210). Thinking of law as providing clear-cut rules, whose content is settled and whose application is uncontroversial, may be what leads Beitz to reject the juridical paradigm of implementation and to assert that the domestic paradigm (i.e. mobilization from below by groups within a society) is “the most substantial of all departures from the [juridical] conception of implementation entertained by the framers of modern human rights” (Beitz 2009, p. 37). To the contrary, I would suggest that domestic enforcement mechanisms crucially rely on the legalization of international human rights norms, and consequently, they are not too different from what the framers, according to Beitz, originally envisioned. Moreover, to respond to the first type of skepticism toward legalization, part of what makes human rights aspirationally attractive is their usefulness as legal tools for political change. That political potential would have been lost if the founders of the modern project of human rights had settled for declaring aspirational lists of human entitlements, without codifying them into formal, binding treaties of international law that enumerate detailed legal rights, which are, in principle, enforceable and justiciable at the national level.

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And, as for the criticism that legal rights claims preclude political disagreement, Samantha Besson (2010, p. 133) points out how modern legal theory emphasizes how law, and especially legal rights, may provide for intermediary agreements that resolve certain conflicts, yet leave others open, such as the specification of duties, and “the legal guarantees of human rights actually ensure that certain debates take place in a society.” Hence, legalized rights open up spaces for political contestation. 2.4.2 Rights Are Power-Mediators The domestic empowerment view has a distinctly political notion of what human rights are. If human rights are chiefly implemented and enforced through political action in the domestic sphere, we cannot conceptualize them as, first and foremost, matters of international concern, as this function fails to explain why their effects are chiefly the result of political action in the domestic sphere; consequently, neither can we let this conceptualization of a human right determine the content, scope, and justification of human rights. Instead, the domestic empowerment view understands human rights as power-mediators, to borrow a term from Christian ReusSmit (2011a): Whatever else they might be, individual rights are power mediators, normative principles that materially weak actors can invoke to alter the power relationship between themselves and materially preponderant political agents or institutions, usually sovereign states. (Reus-Smit 2011a, p. 1210)

Thinking of rights as power-mediators has been a predominant view in international relations research on international human rights, yet it has been largely neglected in philosophical literatures on human rights, Reus-Smit (2009, p. 47; 2011a, p.1210) argues. Rights, he suggests, are a species of normative media which structure power relationships in terms of prevailing societal understandings of legitimate social agency and action (Reus-Smit 2009, p. 39). Viewing rights as power-mediators highlights how struggles for individual rights produce highly contentious politics by challenging existing social hierarchies and the dominant conceptions of political legitimacy that support them. Similarly, in Simmons’s work, this functional aspect of rights is crucial. A government’s ratification of international human rights treaties “give[s] relatively weak political actors important tangible and intangible resources that raise the political costs governments pay for foot-dragging or for noncompliance” (Simmons 2009, p. 15).

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Note that regarding rights as power-mediators is a descriptive, formal view of their function, not a normative statement about their content or justification. It gives an alternative account of how rights work, without saying anything about what rights there are, to whom they belong, or what their normative basis is. Yet just as viewing human rights as by definition giving outside agents reasons to act, the power-mediator view has significant implications for settling normative issues about the content, scope, and justification of rights. A distinctive feature of rights is that they allow their holders or users to make claims and demands, and this feature gives them a special moral significance (Feinberg 1970; for an exploration of that insight, see Ho 2014). If the idea of human rights has changed the course of history by empowering and authorizing individuals and groups to mobilize collectively to challenge political inequality and oppression, this is also why that idea is normatively valuable (Reus-Smit 2011a, p. 1216). Consequently, the domestic empowerment view implies a different view of agency: It accords individuals and collective societal agents chief causal agency in enacting the protection and promotion of their rights. This is both causally and normatively significant. In causal terms, highlighting the agency of individuals allows the domestic empowerment view to explain how international human rights treaties can be enforced, in the absence of external international enforcement mechanisms. The domestic enforcement mechanisms Simmons (2009, p. 126) details “view local actors not as voiceless victims to be rescued by altruistic external political actors, but as agents with some power selectively to choose tools that will help them achieve their rights goals.” In other words, the agents for which human rights most centrally provide reasons for action are not states, the international community, or transnational civil society, but the rights-bearing individuals themselves, since “no one has a more consistent, intense interest in whether and how a government complies with its human rights commitments than the human beings on the ground in that country” (Simmons 2009, p. 356). In normative terms, a theory of human rights which fails to give some role for the causal agency of individual rights-bearers risks not only to become paternalistic, speaking on behalf of but above the heads of those whose rights are at stake, but also to neglect an essential feature of the subject matter: that rights discourse both empowers and authorizes individuals to claim their rights, and that this is an essential part of what makes that discourse morally important.

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2.4.3 Rights Claims Are Claims for Equal Status As another attractive feature, the domestic empowerment view can account for the status-egalitarianism of international human rights practice. A striking fact about international human rights doctrine is that it expresses an idea of equality of status, a fact which any normative reconstruction of the practice should be able to explain, as Allen Buchanan (2010) suggests. This idea is expressed in several of the rights we find in international human rights treaties, cutting across established distinctions between different classes of rights (e.g. positive/negative, civil-political/economic-social). For instance, we find it in rights that seek to ensure robust equality before the law and rights against discrimination; in rights to work, adequate living, and other “positive” rights that serve to reduce the risk that inequalities become so great in a society that some persons are regarded as having inferior status; and in rights to political participation; indeed, the very inclusive ascription of rights to “all persons,” rather than just some category of persons, that we typically find in the preambles of right treaties, is “in itself a recognition of equal status” (Buchanan 2010, p. 685). The entitlements these rights describe cannot be justified only instrumentally, as protections against certain “standard threats”; they also affirm the idea that persons should be treated as equals. Furthermore, the idea of equal status also suggests a socio-comparative interpretation of the idea of human dignity: Human dignity, on this view, requires more than respecting a person’s autonomy; it also involves respecting her status as an equal to others in her society (Buchanan 2010, p. 690). The ideal of equal status runs like a golden thread throughout the history of struggles for individual rights: in early modern uprisings and revolutions against feudal orders based on privilege; in a series of waves of expansion of the international system from the Westphalian settlement to the fall of the Soviet Union, whereby colonial subjects challenged imperial hierarchy by mobilizing collectively around their individual right to be treated as equals; in the movements to abolish slavery, racial segregation, and apartheid; in successive waves of democratic revolutions and transitions, whereby disfranchised masses have claimed the right to be treated as equals in making the laws that govern them; and, not least, in the establishment of the international human rights regime after the Second World War (Buchanan 2010; Forst 2010; ReusSmit 2011b). Through such contentious political processes, the moral universe of persons granted equal status through rights has continually expanded to encompass all human persons (Reus-Smit 2011a). Yet the idea of equal status continues to animate struggles for individual rights, e.g., the rights of children, indigenous groups, LGBT persons, disabled persons, and so forth. Equal

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status, as a plausible interpretation of human dignity, plays an important inventive function in human rights discourse: “it can lead both to a more complete exhaustion of existing . . . rights and to the discovery and construction of new ones” (Habermas 2010). Now, I want to suggest that thinking of rights as power mediators, as enabling their holders to make claims and demands, can account for the status-egalitarianism we register in international human rights discourse and in historical struggles for individual rights. Put differently, the relationship between status-egalitarianism and rights discourse is not contingent: Rights claims are essentially or conceptually claims for equal status. Alexis de Tocqueville (1997, p. 30) captures this aspect when he exclaims: “There is something great and virile in the idea of right which removes from any request its suppliant character, and places the one who claims it on the same level as the one who grants it.” Viewing human rights as conceptually connected to the idea of equal status also helps explaining what makes them both powerful resources for mobilization and compelling moral principles: namely, their universalizability, i.e. “the fact that they cannot, coherently, be claimed by one but denied to another” (Reus-Smit 2011a, p. 1217). This innate connection does not imply that we can somehow derive human rights from the moral value of equality or human dignity, but rather that the act of asserting one’s right conceptually involves claiming equal status. Hence, rights allow their users to make claims for equal status, which is what makes them morally important. If this is a central feature of the politics and discourse of human rights, as I suggest it is, the domestic empowerment view seems to capture it well, as it focuses on how human rights norms provide reasons for action to rights-holders themselves. By comparison, existing political conceptions seem not to register this use of rights at all. On Beitz’s view, human rights provide reasons to act for a wide range of agents – states, international organizations, transnational NGOs, and so on – but not, it seems, for the persons whose rights they are. At any rate, the fact that rights provide rights-bearers with reasons to act has no moral importance in his account of the practice of human rights. The problem becomes evident in the way that Beitz treats three specific hard cases of rights. I shall focus here on how he deals with rights to political participation, but I think a similar case could be made against his treatment of women’s rights (cf. Hessler 2013) and rights against poverty. Like other adherents of the political conception (Baynes 2009), Beitz rejects the idea that rights to political participation and democratic government are human rights. In Beitz’s approach, we should accept

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a claim that something – such as a right to political participation – is a human right if we can demonstrate three things: (1) that the putative right would protect an interest that is important enough to the beneficiaries for its protection to be a political priority; (2) that available public policy instruments would help protect the underlying interests against standard threats; (3) that a state’s failure to protect the interest would be an appropriate object of international concern through action by eligible outside agents (Beitz 2009, p. 137). As Beitz notes, the idea that there is a human right to democracy has become a commonplace in international doctrine and practice, yet he finds it to fail his tests. Democracy, he concedes, is desirable because it helps people protect themselves against the predictable, standard threat that an oppressive or merely unresponsive government poses to their enjoyment of urgent interests in physical or material security. However, he adds, this instrumental justification of democracy does not hold generally across contexts. The putative right to democratic government calls for a particular institutional arrangement that is unfeasible in certain societies: Some societies are too poor and their state apparatus too fragile, in which case democracy may not outperform authoritarian rule in protecting rights or satisfying urgent interests, and we cannot be confident that internal or external agents would succeed in promoting democracy in such weak states. In some societies, the state may do a credible job of protecting rights and urgent interests, but since most citizens hold nondemocratic ideals of legitimate government, their collective right to self-determination would be violated if some group or external agents would impose democratic government. Therefore, Beitz concludes, a right to collective self-determination is a better candidate for a human right than a right to democracy. While there is much to be said about the way in which Beitz reaches that conclusion, what I find most problematic is how he reduces the question of whether there is a human right to political participation, as evolving international human rights doctrine suggests, to a question whether outside agents should and could act to promote or enforce democracy in a society where it is lacking. Posing the problem like that, a right to democracy does look questionable: Historical experience suggests that it is virtually impossible for even the most well-meaning outside agents to establish a working democracy, and that such interferences, even as they are justified in terms of human rights, often serve less noble purposes. But then again, the same might be said for many other currently recognized human rights – the problem is not unique to those rights that Beitz considers to be hard cases (cf. Hessler 2013).

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However, would a putative human right to political participation authorize and empower individuals and groups in a society to challenge governmental authority where such rights are denied? If that is one of the crucial criteria any proposed human right must meet, the empirical track record rather indicates that recognizing a human right to democratic participation can play a constructive, instrumental role: It may contribute to changing the way a quiescent citizenry understands its political entitlements and to undermining a political culture that legitimizes a hierarchical state; it may help prodemocracy opposition groups mobilize for democratic change and consolidation; and it may further a long-term realignment of political forces (cf. Scheingold 2010, p. 131). Moreover, it would seem evidently detrimental to such processes to remove or demote rights to political participation from current international doctrine. To conclude, this example illustrates how the domestic empowerment view generates a normative evaluation of contemporary human rights doctrine quite distinct from the international action view. 2.4.4 The Power-Mediator Role of Rights Is Defined Functionally, Not Institutionally On the domestic empowerment view, seeing international human rights as chiefly realized through domestic political action, one might still hold that they are also matters of international concern. Some critics of human rights suggest that an international human rights regime might have some legitimate role in elaborating and articulating human rights as normative standards, but that it should leave it to states to interpret and implement those standards and other states have no right to interfere where states fail to discharge their duties to protect human rights (cf. Beitz 2009, p. 123). Obviously, this argument does not follow from the domestic empowerment view, which, to the contrary, can assert that outside agents have a self-evident right to express their concern when a government violates or fails to protect human rights and that by doing so, they sometimes provide invaluable normative backup for domestic agents. However, to provide reasons for such international interference is not a necessary conceptual feature of human rights. Indeed, given that even international concern (not to speak of interference or intervention) tends to be selective and erratic, it is desirable to be able to conceptualize human rights in its absence. By conceptualizing rights as power-mediators, the domestic empowerment view is state-centric in a less arbitrary way than other political conceptions,

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which have been criticized for being too bound up with the contingencies of the current state system (Valentini 2012). Specifically, by stipulating that human rights are, conceptually, matters of international concern, Beitz hardwires the existing institutional order into the concept of human rights and limits their scope accordingly; consequently, to speculate about human rights in anything else than our current world order of sovereign states is a category mistake. By contrast, the power-mediator function does not depend, conceptually, on the existence of an international system of sovereign states; it offers a general, practice-independent account of the function that claims for individual rights play (cf. Valentini 2011). Indeed, claiming individual rights to equal status against imperial orders has served critical functions in the establishment of the international system: Christian Reus-Smit (2011b) has shown how the system of sovereign states has globalized through five great waves of expansion, including the Westphalian settlement, the independence of Latin America, post-1945 decolonization, and the dissolution of the Soviet Union. In each of those waves, subject peoples mobilized ideas about individual rights in order to challenge imperial hierarchy based on privileged entitlements, and, as imperial powers failed to meet their demands for equal standing, they exited to form independent states. However, the fact that the power-mediator role is functionally defined, independently of the current practice of human rights and the international order of states, does not preclude that rights claims, on this view, are always institutionally referential in the sense that they address political authority and tap prevalent discourses in society for legitimating support (Reus-Smit 2009): They pertain to a state, and even as other powerful agents may violate them, the responsibility for protecting individual rights and holding violators to account always falls on a state (Forst 2010). 2.4.5 Human Rights Are Not Only the Rights of Others Finally, the domestic empowerment view allows us to explore the role human rights play in democracies – not only in periods of transition, but in wellfunctioning democratic rule of law states, too. Only too many theorists (and policy-makers) seem to think of human rights as the rights of others – citizens of other states, whose systematic failure to protect those rights may call on us, and our governments, to act, in one way or another. Apart from suggesting reasons (or duties, as some cosmopolitans more strongly phrase it) to interfere in such circumstances, human rights, on this view, offer little by way of political, practical guidance in societies that meet certain basic criteria of democracy and the rule of law.

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I find it problematic, for several reasons, to disregard how the practice of international human rights may affect consolidated democracies. First, human rights set minimal standards, and therefore leave much discretion for democratic decision-making at the national level, but above and beyond that, they also set developmental standards, challenging governments to continuously improve their rights performance, and, moreover, the standards keep evolving (Nickel 2007, p. 36f). Hence, even if we think of human rights as standards of legitimacy and toleration, we cannot determine whether a state fulfills them (and thus deserves to be left to its own devices) independently of the practice itself. Second, it seems that international human rights norms have had some of their most remarkable yet unanticipated effects precisely on the world’s leading democracies (cf. Hafner-Burton 2012, p. 276). The European Convention on Human Rights provides a telling example: In the formative moment, shaped by the experience of fascism and the communist take-over in Central Europe, the Convention was mainly conceived as an inter-state pact to prevent states from backsliding into dictatorship, but, as was demonstrated by the socalled Greek case in 1969, an inter-state complaint before the Strasbourg Commission did nothing to prevent the systematic torture and other rights violations committed by the military junta in Greece, which simply decided to leave the Council of Europe (Schaffer 2017). However, in the following years, the European Convention system managed to reinvent itself as a supranational constitutional court in the human rights area, using the convention as a bill of rights for European democracies (Bates 2010), and it has since dramatically altered the rights practices of member states. Not only does this example, again, show the limits of international action against states that fail or refuse to respect human rights, but also that international human rights institutions may play a constructive, critical role even where democracy, the rule of law, and basic rights are consolidated in national law and practice. Admittedly, the European system is unparalleled, but it would seem to be a weakness of a political theory of human rights if it just bracketed such a remarkable case as an anomaly. Third, thinking that human rights pertain only to others may lead us to neglect how even states that do a credible job of realizing human rights often fall short in many respects (cf. Hessler 2013, p. 388). Just think of the Nordic countries, the citizens of which enjoy, on average, a level of rights protection that few other states can match. They rank in the absolute global top on most indexes that can be used as proxies for estimating aggregate human rights fulfillment. They also broadly promote human rights internationally in their foreign policies and they have sponsored new international treaties detailing,

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for instance, rights against torture, women’s rights, children’s rights, and indigenous peoples’ rights (Schaffer 2017). Yet even these supposedly exemplary states – sometimes dubbed “moral superpowers” (Dahl 2005) or “global good Samaritans” (Brysk 2009) – have a track record of systematic abuses of human rights in recent history: mass sterilization laws and eugenics programs affecting tens of thousands of citizens; forcible assimilationist social policies against ethnic minorities; widespread abuse of children placed in foster care and orphanages; illegal surveillance and registration of suspected communist sympathizers; rendition of terrorist suspects to countries where they risk being tortured; extensive use of solitary confinement and isolation in prisons, etc. (Langford & Schaffer 2014). To assume that these states, and others like them, are inherently legitimate by virtue of their domestic institutions, and by default immune from human rights-based criticism, neglects the fact that serious human rights violations may coexist with exemplary efforts at realizing human rights and top-notch democratic institutions. A normative theory of human rights that aims to be political and practice-oriented seems stronger if it does not come with conceptual blinkers to thinking of such cases, and their potential solution, in terms of international human rights. 2.5 CONCLUSION

In this chapter, I have sought to present a political-practical approach to human rights that emphasizes how international human rights mainly make a difference in the world by empowering groups and individuals in domestic society to challenge political authority. I have presented it in polemic with Charles Beitz’s alternative view that human rights are first and foremost matters of international concern. The two approaches share a methodological commitment to theorizing human rights not from the point of view of moral theory but from the perspective of political practice, yet I hope to have shown that there is more than one way to interpret the conceptual features, empirical effects, and normative justification of that practice. What I have offered is just a theory of what the practice of human rights is, not a conclusive argument: I cannot claim to have proven, decisively, that a certain interpretation of the practice and its political effects is correct or incorrect. Yet that is less of a normative philosophical controversy over principles, concepts, or values, and rather a set of empirical questions about how international human rights norms and institutions have come about, how they shape actions and outcomes in world politics, and to whom they give reason to act. Hence, an important task for the philosophy of human rights is to engage

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even further and closer with empirical scholarship on human rights in law, history, and political science. BIBLIOGRAPHY Bates, E. (2010) The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights, Oxford; New York: Oxford University Press. Baynes, K. (2009) “Toward a Political Conception of Human Rights,” Philosophy & Social Criticism, vol. 35 no. 4, pp. 371–90. Beitz, C. (2009) The Idea of Human Rights, Oxford: Oxford University Press. Besson, S. (2010) “Human Rights qua Normative Practice: Sui Generis or Legal?,” Transnational Legal Theory, vol. 1 no. 1, pp. 127–33. Brysk, A. (2009) Global Good Samaritans: Human Rights as Foreign Policy, Oxford: Oxford University Press. Buchanan, A. (2010) “The Egalitarianism of Human Rights,” Ethics, vol. 120 no. 4, pp. 679–710. Dahl, A. S. (2005) “Sweden: Once a Moral Superpower, Always a Moral Superpower?,” International Journal, vol. 61, p. 895. Donnelly, J. (2002) Universal Human Rights in Theory and Practice, Ithaca: Cornell University Press. (2006) “The Virtues of Legalization,” in Meckled-Garcia, S. and C ¸ alı, B. (eds.), The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law, London: Routledge, pp. 67–80. Feinberg, J. (1970) “The Nature and Value of Rights,” The Journal of Value Inquiry, vol. 4 no. 4, pp. 243–60. Forst, R. (2010) “The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach,” Ethics, vol. 120 no. 4, pp. 711–40. Gallie, W.B. (1956) “Essentially Contested Concepts,” Proceedings of the Aristotelian Society, vol. 56, pp. 167–98. Habermas, J. (2010) “The Concept of Human Dignity and the Realistic Utopia of Human Rights,” Metaphilosophy, vol. 41 no. 4, pp. 464–80. Hafner-Burton, E.M. (2012) “International Regimes for Human Rights,” Annual Review of Political Science, vol. 15 no. 1, pp. 265–86. (2014) “A Social Science of Human Rights,” Journal of Peace Research, vol. 51 no. 2, pp. 273–86. Hessler, K. (2013) “Hard Cases: Philosophy, Public Health, and Women’s Human Rights,” The Journal of Value Inquiry, vol. 47 no. 4, pp. 375–90. Ho, K.T. (2014) “On Rights and Demands: How Theorists of Rights Can Benefit from Taking Demands Seriously,” Thesis [Electronic], University of St. Andrews. Available at: http://research-repository.st-andrews.ac.uk/handle/10023/5892 [Accessed 4 February 2015]. Ignatieff, M. (2001) Human Rights as Politics and Idolatry, Princeton, NJ: Princeton University Press. Ingram, D. (2009) “Of Sweatshops and Subsistence: Habermas on Human Rights,” Ethics & Global Politics, vol. 2 no. 3, pp. 193–217.

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Karp, D.J. (2013) “The Location of International Practices: What Is Human Rights Practice?,” Review of International Studies, vol. 39 no. 4, pp. 969–92. Langford, M. & Schaffer, J.K. (2014) “The Nordic Human Rights Paradox,” Rochester, NY: Social Science Research Network, [Electronic]: http://papers.ssrn.com/abstra ct=2275905 [Accessed 1 October 2014]. Meckled-Garcia, S. (2013) “The Practice-Dependence Red Herring and Substantive Reasons for Restricting the Scope of Justice,” Raisons Politiques [Electronic], vol. 51. Available at: http://papers.ssrn.com/abstract=2137525 [Accessed 7 February 2013]. Nickel, J.W. (2006) “Are Human Rights Mainly Implemented by Intervention?,” in Martin, R. and Reidy, D. A. (eds.), Rawls’s Law of Peoples: A Realistic Utopia?, Oxford: Blackwell, pp. 263–77. (2007) Making Sense of Human Rights, Malden, MA; Oxford: Blackwell Publishers. (n.d.) “Assigning Roles to Human Rights,” in Etinson, A. (ed.), Human Rights: Moral or Political?, Oxford: Oxford University Press (forthcoming). Available at: https://d rive.google.com/file/d/0B_VH8cWdlkJSamRrYVFEOXNzd00/edit?pref=2&pli=1. Raz, J. (2010) “Human Rights without Foundations,” In S. Besson & J. Tasioulas, eds. The Philosophy of International Law, Oxford: Oxford University Press, pp. 321–38. Reus-Smit, C. (2009) “On Rights and Institutions,” in Beitz, C. R. and Goodin, R. E. (eds.), Global Basic Rights, Oxford: Oxford University Press, pp. 25–48. (2011a) “Human Rights in a Global Ecumene,” International Affairs, vol. 87 no. 5, pp. 1205–18. (2011b) “Struggles for Individual Rights and the Expansion of the International System,” International Organization, vol. 65 no. 2, pp. 207–42. Risse, T., Ropp, S.C. & Sikkink, K. (eds.) (2013) The Persistent Power of Human Rights: From Commitment to Compliance, Cambridge: Cambridge University Press. Schaffer, J.K. (2013) “Legitimacy, Global Governance and Human Rights Institutions: Inverting the Puzzle,” in Føllesdal, A. Schaffer, J.K. & Ulfstein, G. (eds.) The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives, Cambridge: Cambridge University Press, pp. 212–42. Available at: http://papers.ssrn.com/abstract=2066563. (2014) “A Pluralist Approach to the Practice of Human Rights,” Rochester, NY: Social Science Research Network, [Electronic]: http://papers.ssrn.com/abstract=2490964 [Accessed 23 September 2014]. (2015) “The Co-originality of Human Rights and Democracy in an International Order,” International Theory, vol. 7 no. 1, pp. 96–124. (2017) “Mellan Aktivism och Ambivalens: Norden och de Ma¨nskliga Ra¨ttigheterna,” Retfærd: Nordic Journal of Law and Justice, vol. 40 no. 1. Schaffer, J.K., Føllesdal, A. & Ulfstein, G. (2013) “International Human Rights and the Challenge of Legitimacy,” in. Føllesdal, A. Schaffer, J.K. & Ulfstein, G. (eds.) The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives, Cambridge: Cambridge University Press, pp. 1–31. Available at: http://ssrn.com/abstract=2276835. Scheingold, S.A. (2010) The Politics of Rights: Lawyers, Public Policy, and Political Change, Michigan: University of Michigan Press. Schmitz, H.P. (2004) “Domestic and Transnational Perspectives on Democratization,” International Studies Review, vol. 6 no. 3, pp. 403–26.

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Shapiro, I. (2005) The Flight from Reality in the Human Sciences, Princeton: Princeton University Press. Simmons, B. (2009) Mobilizing for Human Rights: International Law in Domestic Politics, Cambridge: Cambridge University Press. Tasioulas, J. (2009) “Are Human Rights Essentially Triggers for Intervention?,” Philosophy Compass, vol. 4 no. 6, pp. 938–50. De Tocqueville, A. (1997) Memoir on Pauperism, London: Civitas. Valentini, L. (2011) “Global Justice and Practice-Dependence: Conventionalism, Institutionalism, Functionalism,” Journal of Political Philosophy, vol. 19 no. 4, pp. 399–418. (2012) “In What Sense Are Human Rights Political? A Preliminary Exploration,” Political Studies, vol. 60 no. 1, pp. 180–94.

3 Rawls’s Relational Conception of Human Rights Luise Katharina Mu¨ller

3.1 INTRODUCTION

The philosophical discussion between proponents of political conceptions of human rights and proponents of moral conceptions of human rights is far from over. On the “political” side, authors such as James Nickel (2007), Charles Beitz (2009), and Joseph Raz (2010) emphasize the function of human rights in international law and discourse. On the “orthodox” or “moral” side, authors like James Griffin (2008) and John Tasioulas (2012) point out that human rights are ultimately derived from moral rights and bear no conceptual reference to the state system. In this chapter, I want to suggest that a fuller picture of human rights is needed. Instead of focusing on either human rights’ role as general moral norms or their function in international politics, an integrated theory of human rights should speak to the moral side as well as to the political side. Recent contributions to the debate have emphasized that the stark contrast between these two conceptions of human rights is overstated (Buchanan 2010 and 2013; Gilabert 2011; Liao and Etinson 2012; Ladwig 2014). In order to move the debate forward, I join those authors in proposing to abandon this bifurcated conceptualization of human rights. Instead, I draw an analytical distinction between what I call the internal and the external dimension of human rights conceptions. The point of doing so is to see that human rights theories can conceptually integrate a moral justification with arguments about the practical applications of human rights in our political world.

I am indebted to Anna E. Chadwick, Johan Karlsson Schaffer, and Howard Williams for their extremely helpful comments on earlier drafts of this article. I am also grateful to the participants of the political theory colloquium at Freie Universita¨t Berlin for discussing a draft version of the chapter with me.

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The grounding and the justification of human rights fall under the internal dimension. The grounding of human rights is often described in reference to a value or a goal – something that is good for persons to have. For the justification, an explanation is required as to why persons have a right to the enjoyment of that particular value, and not merely, for example, that governments should adopt the value as a loosely defined policy goal. It might be argued that persons have a special or extraordinarily strong interest in having this right. Or it can be argued that the value cannot be secured for all individuals unless it is conceptualized as a right. Moreover, the justification can involve considerations of the social and empirical existence conditions1 of human rights, so as to make the rights (more) determinate. Regarding this internal dimension, proponents of moral conceptions offer answers: some of them argue that human rights are grounded in a specific value, for example personhood or autonomy; and that these rights are justified because in specific circumstances they secure the enjoyment and exercise of that value for all qualifying persons. Under the external dimension of a human rights theory, we ask how and to whom the correlating duties are distributed, and what kind of action human rights, and their violations, give reason to. The bearers of human rights duties may be other individuals, government officials, military, nongovernmental political groups, international organizations, or even private for-profit companies. Human rights may give reasons to a variety of actions: they range from omission of rights violations to the duty to build institutions, and from military intervention to the transformation of the global order. To these questions, political conceptions offer in-depth answers: human rights are thought to bind primarily political institutions such as states or international political bodies. In fact, many contributors to the literature view them as the legitimacy conditions of political bodies (Rawls 1999; Buchanan 2004; Altman and Wellman 2009). A defining feature of political approaches is that violations of human rights give reason to interfere with otherwise sovereign states, be it in the form of naming and shaming, of diplomatic or economic sanctions, or even military intervention. For a full theory of human rights, it seems that both the internal and the external dimension should be considered. In this chapter, I want to take a close look at the remarks that John Rawls makes about human rights in light of these dimensions. I argue that Rawls’s human rights conception falls neither exclusively into the moral nor exclusively into the political category. Instead, I show 1

For examples of Griffin’s practicalities, see Griffin 2008.

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that his conception of human rights has something to offer on both the internal and the external dimension. While this argument might not be controversial concerning the external dimension, it is original in the sense that it implies that Rawls’s human rights conception offers a moral grounding and a justification for human rights. In the literature, Rawls is usually put in the “political” camp, but my aim in this chapter is to give a fuller picture of his theory of human rights. First, I give an overview about what Rawls says about human rights and the roles they play in The Law of Peoples. Second, in the ensuing sections, I will take a closer look at the internal and external aspects of his theory, discuss several lines of criticisms, and provide possible replies. The conclusion of the discussion is that Rawls indeed left us a somewhat fragmentary but systematic account of human rights. This may not only be relevant as a novel interpretation of Rawls but may also contribute to moving the debate beyond the moral-political divide. 3.2 RAWLS ON HUMAN RIGHTS IN THE LAW OF PEOPLES

In his 1999 book The Law of Peoples (henceforth LP), John Rawls takes up the topic of international law. His question in the part of the ideal theory is: what principles of international law would be chosen in a hypothetical contract? Analogously to A Theory of Justice (Rawls 1971), Rawls asks us to imagine an “original position” in which representatives of peoples deliberate the principles that should govern their relations. He chose peoples, rather than individuals, as the basic units of the original contract. Peoples comprise two categories of societies: liberal peoples and non-liberal, “decent” peoples. He argues that both types would agree to eight principles of international law: (1) that peoples are free and independent and that this is respected by other peoples, (2) that they must observe treaties and undertakings, (3) that they are equal and parties to the agreements that bind them, (4) that they have a duty of nonintervention, (5) that they have a right to self-defense and that this is the only reason for instigating war, (6) that they honor human rights, (7) that they must observe rules in war, and (8) that they have a duty to assist others peoples living under unfavorable conditions (Rawls 1999, p. 37). Peoples who respect these principles, that respect certain human rights, and that have a meaningful system of participation in domestic political affairs belong to the category of well-ordered peoples and thereby gain immunity from external (forceful) intervention. The reception of his theory of international law was not too enthusiastic: many colleagues have rejected his theory as overly conservative and antiquated

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(Buchanan 2000; Caney 2002). A central point of criticism has been Rawls’s discussion of human rights (Moellendorf 1996; Teson 1998). Rawls dismisses many of the human rights that are included in the Universal Declaration as “liberal aspirations” and not belonging to the category of “human rights proper.” He rejects the view that the category of human rights should comprise roughly the same rights that persons have in a “reasonable constitutional democratic regime” (Rawls 1999, p. 78ff). On Rawls’s view, human rights set a standard of legitimacy for domestic political and social institutions. They are necessary, albeit not sufficient conditions of a state’s legitimacy. They are universal and compellingly binding for all societies, irrespective of whether they are supported locally or not (Rawls 1999, p. 80). These considerations result in a rather short list of “real” human rights which many find unpersuasive. For example, rights to freedom of expression and rights to democratic participation are not part of human rights proper. Rights against discrimination, for example on the basis of gender or religion, are minimal (Beitz 2009, p. 97). Although I won’t do justice to all the objections that have been raised in the literature, I review some of them in the next section. 3.3 THE INTERNAL DIMENSION OF HUMAN RIGHTS: UNIVERSALITY AND SOCIAL COOPERATION

One line of criticism claims that the reason for including only the most basic rights into the list of “human rights proper” is because Rawls wanted to accommodate non-liberal peoples. In order to come to an agreement about human rights with them, the list of human rights had to be severely cut. This seems like a political agreement rather than a morally justified list, and it is therefore unclear whether human rights can have the normative force that Rawls seems to want them to have. For example, James Nickel describes the justificatory process for human rights as “analogous to the one for principles of justice at the national level that Rawls described in A Theory of Justice” (Nickel 2014, p. 2.3). He portrays the original position with the free and equal representatives of peoples that reasonably and rationally choose principles that guide the global order. Included in these principles is a “modest” list of human rights that, according to Nickel, Rawls chose for the reason that he did not want his list to be parochial and “that countries around the world would find attractive” (Nickel 2014, p. 2.3). Nickel seems to be saying that the list of human rights Rawls presents is the product of the second original position, a list the representatives of liberal and decent hierarchical peoples could agree to during their deliberations. In order for decent societies to be able to agree to the principles of the LP, so Nickel argues, the list of human

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rights had to be rather shorter than longer, otherwise they would not have accepted it (Nickel 2007, p. 99; see also Caney 2002, p. 96). According to this view, human rights are the result of a hypothetical agreement and have no independent moral grounding. If this is the case, it raises the charge of relativism: truncating the list of human rights in order to accommodate more states has at best a pragmatic taste; at worst, it gives in to the demands of those who oppress their citizens. Surely, the normative validity of human rights norms cannot be dependent on what people happen to agree on.2 In the interpretation I defend in this chapter, human rights are justified independently from any agreement made between peoples (Reidy 2006, p. 178). First, consider the construction of Rawls’s argument: the criteria peoples must fulfill in order to be a member of the society of peoples are prior to the agreement that leads to the LP. Only those peoples who qualify in the first place by fulfilling the criteria of “decency” – one of which is respect for human rights – would endorse the proposed eight principles of international law (Rawls 1999, p. 61, 65, 68f). Additionally, only if we understand human rights as prior to the hypothetical agreement, the distinction between liberal and decent peoples on the one side and outlaw states on the other makes sense. While liberal and decent peoples are allowed to be parties to the hypothetical contract, outlaw states, benevolent absolutisms, and burdened societies are not. If the content of human rights was an agreement between societies, excluding some societies in the first place from the deliberations in the original position is incoherent. The fact that Rawls includes respect for human rights again in the eight principles arguably lends itself to the misunderstanding that they are derived from the deliberations. But peoples add them to the contract because they respect human rights independently in the first place. Justifying the authority of human rights by appealing to the agreement would be a circular argument, since respect for human rights is part of the definition of the parties in the deliberations (Beitz 2009, p. 98). In light of these considerations – as well as how the argument is constructed – we should not confuse the justification of human rights with their place in international law. But if human rights are in fact independent of the people’s agreement to them, what is their normative ground? Rawls is explicit that they are not based on any kind of “theological, philosophical, or moral conception of the nature of the human person” (Rawls 1999, p. 81). Human rights are a proper subset of

2

Some authors, like Martha Nussbaum and Charles Taylor, actually have defended a version of this view when they say that human rights are the result of an overlapping consensus. Note that although the concept of an overlapping consensus stems from Rawls, he does not defend such a view (Beitz 2009, p. 76).

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rights of persons in liberal democratic regimes as well as the proper subset of rights of persons in non-liberal decent societies. Both peoples – liberal and decent non-liberal – do not tolerate outlaw states, which are defined as not respecting human rights (Rawls 1999, p. 81). This is because human rights are “universal rights” that have “a political (moral) effect whether or not they are supported locally” (Rawls 1999, p. 80). They express binding norms for all societies (ibid.). At another point in the book, Rawls argues that within his approach human rights cannot be rejected as liberal, parochial, or special to the western tradition (Rawls 1999, p. 65). But if human rights are derived neither from a particular conception of human nature nor from the agreement of the parties in the deliberations, where do they come from? In an early article, Charles Beitz argues that this is exactly the problem: apart from describing their function(s), Rawls does not provide an independent justification of human rights. By not giving reasons why there are human rights in the first place, so Beitz argues, Rawls’s claims remain unpersuasive (Beitz 2000, p. 685 f ).3 Instead of an independent justification for human rights, Beitz understands Rawls’s human rights approach as being justified by considerations of international stability. The reason why all societies should respect human rights is that human rights violating regimes are dangerous to other societies (Beitz 2000, p. 685). Indeed, Rawls speaks of an “attitude” that liberal and decent states have when they do not tolerate “outlaw” (human rights violating) states, and that all peoples are safer and more secure when outlaw states stop violating human rights (Rawls 1999, p. 81). Beitz describes Rawls’s position as follows: In Rawls’s view, the practical import of the claim that there is a human right to something – say, to personal liberty – is that intervention by outsiders, by admonition, diplomatic pressure, economic sanctions, and possibly by force, might be justified when a government persistently violates the right. An account of the justification of human rights should therefore explain why a violation would warrant intervention to bring about reform. In contrast to the conventional view, and perhaps surprisingly, Rawls does not hold that reform intervention would be justified by the good that would be done for those whose rights are in jeopardy. Instead he argues that intervention would be justified by considerations of international stability . . . . (Beitz 2000, p. 685)

3

In his later book on human rights (Beitz 2009) this particular criticism is not central to Beitz’s discussion of Rawls’s position.

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But this seems strange to Beitz: (. . .) whatever might be said about intervention, it is clear that the strategic interest in international stability does not bear on the moral status of human rights. For example, the reason why people have human rights not to be tortured does not seem to be that regimes that torture are dangerous to other regimes: although the latter fact (if it is a fact) might justify intervention, it does not imply anything about the moral situation of the tortured.

On the view I defend in this chapter, considerations of stability are not the decisive reasons why liberal and decent societies do not tolerate human rights violations. Here, the distinction between the grounding of human rights and the actions they give reason to is helpful. Considerations of stability do play a role in reasoning about what kind of action human rights violations trigger. After all, if a state cannot uphold a system of social cooperation internally, it is reasonable to question their governments’ capacity to respect a system of cooperation internationally. But we should not confuse considerations of what peoples should do about human rights violations with the grounding and justification of human rights. Beitz’s claim implies that if the human rights violations would happen strictly inside one state and there were no, for example, refugee movements into neighboring states, then, in Rawls’s theory, liberal and decent states have no reason for intervention, since other states would not be affected and could therefore not be safer or securer without the human right violating states. But this precisely is not Rawls’s view. He argues that although the exact way in which well-ordered peoples pressure outlaw regimes into changing their aggressive and human rights-abusing ways will always be a question of political judgment and the intervention’s likely consequences from case to case, there is still a prima facie case for intervention in cases where the outlaw state is not aggressive toward other states but “only” violates the human rights of the people within their controlled territory (Rawls 1999, p. 93, fn 6).4 Industrially developed societies that seek to trade and cooperate with liberal or decent peoples have no reason to complain against an intervention even when the human rights violations they commit are not a danger to other peoples. Rawls believes that a society that, for example, holds slaves “must be made to realise that without honoring human rights, their participation in a system of social cooperation is simply impossible, and that such a system would be to their benefit. A system driven by slavery and the threat of human sacrifice [he uses the imaginary example of 4

Rawls also argues that at least theoretically there are some cases – cases of societies that have been living isolated with little or no contact to other societies, let alone the state system – where we have no way to influence them (Rawls 1999, p. 93, fn 6).

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a contemporary Aztec society that holds slaves and keeps younger members of the society as potential human sacrifice in temples, L. M.] is not a system of cooperation, and cannot be part of an international system of cooperation” (Rawls 1999, p. 93ff, fn 6). He concludes that forceful intervention may be justified and even called for if there are egregious human rights violations and the society in question has not reacted to the imposition of sanctions, even in cases where that society does not engage in externally aggressive or dangerous behavior (ibid.). I want to argue that we can make more sense of Rawls’s view by understanding human rights as conditions for social cooperation. This is an argument that Rawls makes – albeit very sketchily – in LP. He argues that what we call human rights are recognized as necessary conditions of any system of social cooperation. Their violation expresses that the society is not a system of social cooperation but a slave system, one that functions only by force (Rawls 1999, p. 68). My argument in this section will be that Rawls grounds human rights in the human interest to be a fully participating member in a system of social cooperation. Human rights protect this interest and let individuals exercise it. I want to note that the account of human rights cannot, as was the case with the account of the basic liberties that Rawls defends in A Theory of Justice, depend on a specific conception of the person. Recall his method to arrive at the principle: he postulates a liberal, “Kantian” conception of a person5 – with freedom and equality lying at the core of this conception – that is positioned in the original position. Recall also that the conception of a person as free and equal, and rational and reasonable, is an interpretation of how we – you and me – see ourselves and others in a liberal society (Rawls 5

The Kantian conception is characterized by four features that fall into two categories. Kantian persons view themselves as free and equal, which, as we have seen, are non-universalizable in Rawls’s view, and they are rational and reasonable. These last two are moral capacities (Rawls calls them “moral powers”) and it seems that they have to be universal features of persons in the sense that they must be features of persons capable of social cooperation. So although not all persons share the Kantian conception of the person, they certainly share some features of the Kantian conception of the person. At another place, Rawls notes that “a Kantian doctrine joins the content of justice with a certain conception of the person; and this conception regards persons as both free and equal, as capable of acting both reasonably and rationally, and therefore as capable of taking part in social cooperation among persons so conceived” (Rawls 1980, p. 518). It is unclear whether the reasonableness and rationality accounts for the moral capacity to participate in social cooperation, or whether freedom and equality are also necessary features. If that was the case, then my interpretation of social cooperation as a universal grounding of human rights is less convincing, because it would not make sense to distinguish between liberal and decent societies. After all, Rawls’s “Kantian Constructivism” and his Theory of Justice claims that the Kantian conception of the person is the grounding from which we can deduce the principles of justice. If all societies have the same grounding, they also have to have the same principles.

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1980). This conception of a person is just, but it is not universal. Other people – those that are not living in liberal societies – may have a different, non-Kantian conception. As Samuel Freeman notes, the method Rawls uses in A Theory of Justice is not at his disposal in his international theory because we lack a shared global conception of a person (Freeman 2006, p. 36). The notion of social cooperation is central to Rawls’s conception of human rights.6 Rawls says only little about what he understands as social cooperation in the Law of Peoples, but A Theory of Justice and Political Liberalism help understand the concept more fully. Social cooperation has three elements that define it: (1) cooperation is distinct from coordination in the sense that cooperation is guided by public rules that are accepted by the participating members. (2) Cooperation is characterized by the mutually benefiting participants in a scheme of social cooperation who each accept reciprocally fair terms of cooperation. (3) Participants in this scheme try to advance or achieve a certain good from within it (Rawls 1993, p. 16). In A Theory of Justice, Rawls defines society as a cooperative venture for mutual advantage (Rawls 1971, p. 520). Particularly in contrast to the slave system, it makes sense to think of social cooperation as offering mutual benefits for all participants. Moreover, only if a system is mutually beneficial, it can be accepted by all participants as fair. But this, as Freeman argues, is only half of the story. Importantly, Rawls includes the sense of justice into his description of what social cooperation requires: “People who are engaged in social cooperation normally are not focused exclusively on their own good, in the sense that they are ready to take advantage of others and free-ride whenever circumstances permit” (Freeman 2006, p. 37). Rather, they are willing to accept rules that are fair, even though they do not always turn out as being maximally to their individual benefit. I assume Rawls to be saying that this complex notion of social cooperation is what grounds human rights. As the enabling conditions of a social cooperative order, they are reflected by the content of the public rules (1), they make mutual benefit possible by securing rights equally (2), and they enable persons to advance and achieve their conception of the good without (strong) interference and they do so equally (3). The claim is that such a system of social cooperation – one in which human rights proper are respected – is the opposite of a system that is upheld only by force. Think of human rights as 6

Freeman wonders why critics rarely, if ever, mention or discuss the argument that human rights are necessary conditions for social cooperation, see Freeman 2006, p. 36. For a notable exception see Joseph Raz (Raz 2010), whose objections I will discuss later.

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the decisive reason for rational persons entering a political association, political in the minimal sense that it is governed by rules and norms. Without at least these rights guaranteed, persons could not enjoy the advantages that political association offers, and hypothetically, it would be rational for them to abstain from joining a political association. Without those rights, they would be better off, or at least not worse off, in a state of anarchy. How convincing is the argument that human rights make social cooperation possible? Joseph Raz objects that it seems false that all societies in which human rights are not respected can be characterized as societies that command by force, as Rawls seems to be saying (Raz 2010, p. 329). Surely, he argues as an example, not all sexist societies which denied women property rights are commanded by force. But what is the idea of force here? It is certainly right that at least all modern states govern by force in one way or another, but Rawls’s point is those that respect human rights do not exclusively govern by force. The contrasting idea to the system governed by force is that members of the social cooperation view the rules governing the system as fair and enabling the enjoyment of mutual advantage from their standpoint. This gives them a normative reason to obey the rules. If they cannot view the rules governing a political association as being fair and for mutual advantage, their integration into the political association can indeed be aptly characterized as being commanded by force. Obviously, what counts as fair and reasonably acceptable rules is subject to disagreement, but it is not completely arbitrary. It seems that crass and unjustified inequality would be precluded, which brings us back to Raz’s initial example of the sexist society. If the terms of society are such that being of a certain gender – or race for that matter – precludes persons from enjoying any kind of property rights, then those excluded do in fact have no (rational) reason to participate in that society. With this explanation in mind, it does not seem far off to describe such a situation as a system that is commanded by force. In fact, it is an adequate description of what we would consider a slave system. In reference to the dimensions I outlined in the beginning of the chapter, human rights are grounded in the value of social cooperation and justified by their ability as rights to protect and promote this value for all persons equally. Rawls thinks that human rights enable persons to be full and participating members of social cooperation. They are the opposite of a system that imposes commands by force which is characterized precisely by the lack of the idea of social cooperation (Rawls 1999, p. 65). Thus understood, they are genuinely universal moral claims7 and antecedent of any hypothetical 7

See also Hinsch and Stepanians 2006

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agreement – and cannot be rejected as parochial or particular to a liberal view.8 In this sense, they can be grounded in an interest or value – the interest or value in being a participating member of a system of social cooperation – but this interest or value cannot be specified apart from social cooperation with others. The contrast with the “orthodox view” or “moral conceptions” of human rights is interesting here: the value or interest that grounds human rights is not a feature of the individual right-holder, such as personhood or autonomy. It is an intersubjective, “relational” idea, one that refers to the relations between persons. At this point, we might want to ask why Rawls’s list is so “ultraminimal” (Nickel 2007, p. 98) if it is morally grounded. A criticism here is that Rawls’s human rights list is so minimal that its consequences are too abhorrent as to be of any serious philosophical interest. Simon Caney, for example, claims that ethnic cleansing and racial discrimination are not prohibited by Rawls’s human rights standards. Caney claims that a society governed by apartheid principles, where a racial minority is exploited and exposed to dangerous and menial work, could and should be tolerated by liberal peoples according to Rawls’s view; and the same goes for a patriarchal society, where women are flogged for adultery and must endure genital mutilation (Caney 2002, p. 102f). I think what he intends to do by giving these examples is to show how Rawls’s human rights account is in no way consistent with our intuitions of what and whom human rights should protect and that, according to Rawls’s account, appalling “traditions” and behaviors must be tolerated. Samuel Freeman is confident that Caney’s interpretation on what Rawls would find tolerable is not supported by the text9 (Freeman 2006, p. 31, fn 5). As it turns out, Rawls explicitly denies that racial discrimination, ethnic cleansing, cruel punishment, and torture (Female Genital Mutilation and flogging clearly fall under this category) or apartheid would be legitimate within the conception of human rights (Rawls 1999, p. 80, fn 23). In order to understand how minimal Rawls’s list actually is, let us have a look at what exactly Rawls deems to be necessary conditions of social cooperation. In a footnote (Rawls 1999, p. 80, fn 23) he mentions Art. 3 to Art. 8

9

They are also distinct from further bona fide moral duties and obligations that a decent system of law imposes on all persons (Rawls 1999, p. 65). Rawls relies on Philip Soper’s theory of law at that point (Rawls 1993, p. 109, fn 15; Rawls 1999, p. 66, fn 5; Rawls 1999, p. 67, fn 6). Caney has a few controversial claims in his paper, but one that I do agree with is the claim that Rawls’s theory does allow for states that deny their constituents democratic voting rights, although I differ from Caney in thinking that Rawls would not allow for unequally distributed voting rights (his example is voting rights for a privileged caste and no voting rights for another caste). I think that Rawls’s commitment to the Convention on the Elimination of Racial Discrimination would exclude this possibility.

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18 of the Universal Declaration as expressing human rights proper. This includes the right to life,10 liberty, and security of the person; the right not to be held in slavery or servitude, and the prohibition of slave trade; the right against torture or cruel, inhuman, or degrading behavior; the right to recognition everywhere as a person before the law; the right to fair and due process, human rights adjudication, natural legal justice (including the presumption of innocence and the nullem crimen sine lege principle, among others); the right not to be arbitrarily arrested, detained, or exiled; the right against arbitrary interference with one’s home, family, and correspondence; the right to freedom of movement within one’s country and the right to exit and return; the right to seek and enjoy political asylum in other countries; the right to a nationality and to not be denied the right to change it; the right to marry whomever one likes, if, and only if both spouses consent; the right to own property, alone and with others and the right to not be arbitrarily deprived of it; and the right to religious freedom and freedom of conscience and thought, which includes changing and exercising it in public. He then argues that there are rights that are “obvious implications” (Rawls 1999, p. 80, fn 23) of the rights mentioned above: they are described in the special conventions on genocide and apartheid. The Convention on the Prevention and Punishment of the Crime of Genocide (1948) states that genocide, in times of peace and in times of war, is a crime under international law that is to be prevented and punished. It comprises killing members of a group, causing serious bodily or mental harm to members of a group, deliberately inflicting conditions that are calculated to bring about a group’s physical destruction in whole or in part, imposing measures intended to prevent births within the group and forcibly transferring children of the group, to another group. And to complete the exercise, the International Convention of the Suppression and Punishment of the Crime of Apartheid (1973) includes all the elements of crimes mentioned in the genocide convention above (applied to racial groups) plus the prohibition of any measure calculated to prevent a racial group from participating in the political, cultural, and economic life, especially by denying them their human rights; any measure calculated to divide a society along racial lines by establishing reserves or ghettos, preventing mixed marriage, or the expropriation of landed property; the prohibition of exploitation of the labor of the members of the group, especially by submitting them to forced labor; and the prohibition of the persecution of organizations and persons because they oppose apartheid. 10

The right to life includes not only security of the person, but also provision of the means of subsistence, Rawls 1999, p. 65.

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An objection here may be that even if we would accept that human rights are grounded in the value of social cooperation, Rawls’s list of human rights is, nevertheless, too short. Freedom of expression, one may argue, is a necessary feature of any kind of social cooperation; so is the right to education. While it is obvious from the list that this is not what Rawls thought, there is no reason to deny the point prima facie. If the case can be plausibly made for why social cooperation is not possible without a legally guaranteed right to freedom of speech or education, I am happy to concede it.11 Note, however, that this is not an objection in principle against Rawls’s conception of human rights; it is only a correction of the content. In any moral theory of human rights there will be contentious cases on which persons will reasonably disagree and that are in need of further argument. 3.4 THE EXTERNAL DIMENSION OF HUMAN RIGHTS: COERCION AND THE LIMITS OF SOVEREIGNTY

What kind of action do human rights give reason to? Rawls points out several times that he “follows Kant’s lead” (Rawls 1999, pp. 10, 29, 44) and that he is “greatly indebted to Kant’s idea of a foedus pacificum” (Rawls 1999, p. 86). But what actually has Rawls to do with Kant in his theory of international law? I suggest that LP is best understood as a theory of compelling law:12 it delineates which actions warrant the use of legitimate coercion in cases of its breach.13 That is why Rawls’s conception of international law and of human rights is misunderstood as a theory of global ethics. Instead of asking “What would make the world fully just?” his question is: “Under which circumstances and to what actions can we legitimately coerce others?” This explains the emphasis of coercion – and therefore of coercive intervention – in the context of human rights. In a way, Rawls does follow Kant when he characterizes the nature of a right as justifying legitimate coercion. Rawls’s concern, paralleling Kant’s in the Doctrine of Right,14 is how peoples can be forced to treat both one another and the persons who inhabit their (or another peoples’) territory. This line of argument is also put forth by Leif Wenar. He shows that 11

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Samuel Freeman discusses this objection and argues that to claim that social cooperation is impossible without the right to vote or run for office or the right to destroy national symbols is not to take seriously the idea of human rights (Freeman 2006, p. 37f). This kind of argument is frequently invoked when trying to rescue Rawls’s human rights approach, see Brock 2014, p. 352f. That does not mean, however, that Rawls excludes deeper or closer forms of cooperation between peoples, such as voluntarily forming a union (like the EU) or agreeing on covenants and treaties that can be binding. See for example Arthur Ripstein’s interpretation of the Doctrine of Right, Ripstein 2009

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Rawls’s theorizing in LP is much closer to his Political Liberalism than to A Theory of Justice. Rawls, he argues, is fundamentally concerned about the question under what circumstances the coercive force of political institutions may be employed. Rawls’s answer to this is familiar from Political Liberalism: coercion is only legitimate if it is exercised on grounds that can be reasonably accepted by those who are coerced (Rawls 1993; Wenar 2004, p. 60). If this is the case, then the grounds on which coercion is justified must be made up so as to be acceptable to all. It therefore cannot be based on a comprehensive view. Applied to the concept of international law, a distinction can be drawn between norms and institutions that are obligatory in themselves and institutions that are obligatory because they were agreed to by states. The first category is called “jus cogens” – compelling law – in international law. In the first case, the bindingness of the norm or institution stems from their nature, whereas the second type binds because of an agreement. Consider the principle that prohibits slavery or aggressive war. This principle draws its legitimacy directly from universal moral considerations: that no person is a means or a thing, and following from this, that societies may not sacrifice persons for their economic interests or national glory. These principles are not only legitimate in themselves, but they are also absolutely binding and without the option to exit. Institutions like the European Union, however, do not draw their legitimacy from those kinds of norms; rather, they are established to facilitate cooperation and deepen the ties between the European states. Leaving the EU may be politically unwise and economically unprofitable, but it would not be the kind of moral offence that enslaving individuals is. What Rawls calls human rights proper belongs to the first category of norms. Right, for Rawls, is inextricably intertwined with the authority to coerce others. Note that the authority to coerce does not automatically translate into the authority to intervene militarily, as Tasioulas suggests15 (Tasioulas 2009, p. 940). It can be anything from condemnation (Rawls 1999, p. 81) to diplomatic and economic sanctions;16 military intervention is only a last resort option in grave cases (Rawls 1999, p. 43) – and then only under the condition that the rules of just war are strictly observed. If a political institution – and in Rawls’s

15

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Tasioulas stresses that his argument is not that Rawls holds military intervention as the only action human rights violations give reason to, but that it is the distinctive characteristic of human rights that they are capable of triggering military intervention (Tasioulas 2009, p. 940). For a similar, “narrow” interpretation of Rawls see Valentini 2012. I am grateful to Johan Karlsson Schaffer for pointing out the problem that if the notion of coercion is too widely understood, it risks becoming indistinguishable from other concepts such as influence. It is questionable whether condemnation can be plausibly understood as a type of coercion.

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context we are talking about the state that has this primary responsibility – fails to comply with the duty to protect and secure human rights, coercion to achieve compliance is legitimate; it is not an infringement on their autonomy. The implication of this understanding of a right is, as we have seen before, that Rawls allows for fewer human rights. What is indeed problematic is that Rawls does not provide any argument why he understands rights as justifications for coercing others to respect rights. While it does seem like a plausible point, there is no doubt that much more needs to be said in order to defend it.17 However, if we accept Rawls’s conception of a right, it makes sense to distinguish between “actual human rights” and liberal aspirations. Although he thinks it would be better if all societies were liberal democracies, Rawls reasons that requiring and enforcing that all societies have liberal rights would mean a lack of respect to some societies and would lead to bitterness and resentment toward liberal societies (Rawls 1999, p. 61). It would be better if decent non-liberal states reform themselves into liberal states. Leaving sufficient room for self-determination only means that it is not the job of liberal peoples to do that. Who bears the duties that correspond to human rights? Clearly, Rawls ascribes a responsibility to protect those rights to political associations: first, in the sense that they must protect the human rights of their own citizens in order to be immune against attacks on their sovereignty, and second, in the sense that they have the authority to intervene diplomatically or militarily into states that disregard the human rights of their citizens. While individuals have the duty to refrain from violating their fellow humans’ rights, the responsibility to ensure and enforce this duty lies with the respective political association. This is why human rights characteristically are claims against a political authority to secure, enforce, and offer redress of human rights violations. They govern relations with and under political authority. One worry Raz has about Rawls’s human rights theory is that Rawls misunderstands the connection between the limits of sovereignty and the limits of legitimate authority: “The main point I wish to emphasize is that the moral principles determining the limits of sovereignty must reflect not only the limits of the authority of the state, but also the relatively fixed limitations on the possibility of justified interference by international organizations and by other states in the affairs of even an offending state” (Raz 2010, p. 331). If I understand him correctly, Raz’s problem with Rawls’s human rights approach lies in the fact that there should be more conditions for legitimate authority within the state as well as more conditions for legitimate external intervention. Pointing to 17

Due to the limitations of this article I cannot discuss this here.

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human rights only is sufficient neither to delineate the limits of legitimate authority nor to specify the conditions of legitimate intervention. But it is not clear that Rawls actually holds this position. In the section on human rights, Rawls argues that the fulfillment of human rights is a necessary, but not a sufficient condition of the decency of a society’s institutions (Rawls 1999, p. 80). It is clear from Rawls’s discussion that the conditions for legitimate authority in liberal societies are not identical with the conditions for legitimate authority in non-liberal societies. Although human rights must be part of the conditions for legitimate authority, they are not the only conditions. Other conditions include, for example, the right to health care for all citizens, and a decent distribution of income for liberal societies (Rawls 1999, p. 50) and a common idea of justice that is plausibly put into effect by the society’s system of law (Rawls 1999, p. 65). Regarding the necessary and sufficient conditions for justified external interference, things are more complicated. In ideal theory, Rawls argues that the fulfillment of human rights is sufficient to exclude external interference (Rawls 1999, p. 80). However, as I understand it, Raz’s concern is that there are too few conditions on justified interference: merely violating human rights is not sufficient for justifying interference in the face of the current features of international relations. There are two things that I want to mention as a possible response: first, interference should not be misunderstood as exclusively meaning military intervention. Recalling the full range of what intervention means – diplomatic as well as economic measures – and taking military intervention as a measure of last resort, Rawls restricts himself by saying that the question how to bring all peoples to respect human rights is primarily one of political wisdom. Political philosophy does not have much to add here (Rawls 1999, p. 93). Second, in the nonideal part of LLP, Rawls adds a number of conditions on the use of military force when he discusses Just War Theory. Wellordered peoples have, for example, no right to begin a war in pursuit of their rational interests (Rawls 1999, p. 91). Also, peoples must establish common organizations in which they must give public reasons to one another for their actions (Rawls 1999, p. 42). I agree with Raz that Rawls should have said more about this, but his comments at least show that he seemed to be aware of these problems and that Raz’s concerns can probably be accommodated. 3.5 CONCLUSION: MAKING SENSE OF RAWLS’S HUMAN RIGHTS CONCEPTION

My aim in this chapter was to interpret Rawls’s remarks on human rights in their best light. The internal dimension of Rawls’s conception of human rights is underdeveloped, but I hope I have given an idea of a more balanced picture

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of his human rights idea than the picture that has dominated the literature. According to my reading, human rights are not either general moral norms or tied to the function of setting limits to sovereignty. They must be both, otherwise they would be incomplete. Only general moral norms can justify the type of coercion Rawls ascribes to human rights. If my argument is convincing,18 then we have reason to distinguish Rawls’s conception of human rights from both orthodox or moral and political conceptions of human rights. Although Rawls’s human rights theory is usually put under the “political conception” label of human rights, it is not a political conception in the usual sense. As opposed to Charles Beitz’s approach, Rawls does not take the practice of human rights to be in any sense normatively authoritative. As opposed to Joseph Raz’s theory of human rights, Rawls can conceptually accommodate a world without a state system. As Rawls was concerned with a theory of international law in LP, his arguments are tailored to the state, but there is no principled reason why his theory is not useful even when applied to smaller or larger units of social cooperation. As sovereignty is a consequence, not a precondition, of the respect for human rights, his account also makes sense without reference to the state system. If we reject the view that human rights are solely defined by their international function and instead assume that they are justified because they are necessary to social cooperation, we can also intelligibly describe their function in domestic politics.19 In contrast to orthodox moral conceptions of human rights, the approach I presented is different in the sense that it justifies human rights in virtue of an idealized concept of social relations, whereas orthodox moral conceptions justify human rights in virtue of some individual moral characteristic. In this sense, Rawls’s conception is more abstract. Importantly, justifying human rights in terms of social cooperation has the comparative advantage that we do not require an ideal or very demanding theory of what a good human life is. Furthermore, it can explain the inherent status egalitarianism of human rights (Buchanan 2010) because, again, it does not rely on the value of an individual moral characteristic that persons have to a varying degree. While these issues need to be explored further, I believe they already point in a promising direction. 18

19

The interpretation that I have suggested fits in with Rawls’s larger thinking: social cooperation is a central feature in his general philosophy. Think about the central aim of his Theory of Justice. Arthur Ripstein summarizes it as follows: “ . . . given the benefits and burdens that all can expect from social cooperation, and the burdens that it generates, what terms of cooperation are acceptable to persons considered as free and equal?” (Ripstein 2009, p. 4; for a similar characterization see Beitz 2000, p. 671). Social cooperation is the ground for which questions of distributive justice arise in the first place. For an argument about the important role of human rights in domestic politics see Johan Karlsson Schaffer’s article in this volume.

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BIBLIOGRAPHY Altman, A. and Wellman, C. H. (2009) A Liberal Theory of International Justice, Oxford: Oxford University Press Beitz, C. (2000) “Rawls’s Law of Peoples,” Ethics, vol. 110 no. 4, pp. 669–96. (2009) The Idea of Human Rights, Oxford: Oxford University Press. Brock, G. (2014) “Human Rights,” in Mandle, J. and Reidy, D. A. (eds.), A Companion to Rawls, Chichester: Wiley-Blackwell. Buchanan, A. (2000) “Rawls’s Law of Peoples: Rules for a Vanished Westphalian World,” Ethics, vol. 110 no. 4, pp. 697–721. (2004) Justice, Legitimacy, and Self-Determination, Oxford: Oxford University Press. (2010) “The Egalitarianism of Human Rights,” Ethics, vol. 120 no. 4, pp. 679–710. (2013) The Heart of Human Rights, Oxford: Oxford University Press. Caney, S, (2002) “Survey Article: Cosmopolitanism and the Law of Peoples,” The Journal of Political Philosophy, vol. 10 no. 1, pp. 95–123. Etinson, A. and Liao, M. S. (2012) “Political and Naturalistic Conceptions of Human Rights: A False Polemic?,” Journal of Moral Philosophy, vol. 9, no. 3, pp. 327–352. Freeman, S. (2006) “The Law of Peoples, Social Cooperation, Human Rights, and Distributive Justice,” Social Philosophy and Policy, vol. 23 no. 1, pp. 29–68. Gilabert, P. (2011) “Humanist and Political Perspectives on Human Rights,” Political Theory, vol. 39 no. 4, pp. 439–67. Griffin, J. (2008) On Human Rights, Oxford: Oxford University Press. Hinsch, W. and Stepanians, M. (2006) “Human Rights as Moral Claim Rights,” in Reidy, D. A. and Martin, R. (eds.), Rawls’s Law of Peoples, A Realistic Utopia?, Malden: Blackwell Publishing. Ladwig, B. (2014) “Menschenrechte, Institutionen und moralische Arbeitsteilung,” Politische Vierteljahresschrift, vol. 55 no. 3, pp. 472–492. Moellendorf, D. (1996) “Constructing the Law of Peoples,” Pacific Philosophical Quarterly, vol. 77 no. 2, pp. 132–154. Nickel, J. W. (2006) “Are Human Rights Mainly Implemented by Intervention?,” in Reidy, D. A. and Martin, R. (eds.), Rawls’s Law of Peoples. A Realistic Utopia?, Malden: Blackwell Publishing. (2007) Making Sense of Human Rights, Malden: Blackwell Publishing. (2014) “Human Rights,” The Stanford Encyclopedia of Philosophy (Winter 2014 Edition), Edward, N. Zalta (ed.), [Electronic]: http://plato.stanford.edu/archives/ win2014/entries/rights-human/ Rawls, J. (1971) A Theory of-Justice, Cambridge: Harvard University Press. (1980) “Kantian Constructivism in Moral Theory,” The Journal of Philosophy, vol. 77 no. 9, pp. 515–72. (1993) Political Liberalism, New York: Columbia University Press. (1999) The Law of Peoples, with: The Idea of Public Reason Revisited, Cambridge: Harvard University Press. Raz, J. (2010) “Human Rights without Foundations,” in Besson, S. and Tasioulas, J. (eds.), The Philosophy of International Law, Oxford: Oxford University Press. Reidy, D. A. (2006) “Political Authority and Human Rights,” in Reidy, D. A. and Martin, R. (eds.), Rawls’s Law of Peoples. A Realistic Utopia?, Malden: Blackwell Publishing.

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Ripstein, A. (2009) Force and Freedom: Kant’s Legal and Political Philosophy, Cambridge: Harvard University Press. Soper, P. (1984) A Theory of Law, Cambridge: Harvard University Press. Tasioulas, J. (2009) “Are Human Rights Essentially Triggers for Intervention?,” Philosophy Compass, vol. 4 no. 6, pp. 938–50. (2012) “The Moral Reality of Human Rights,” in Pogge, T. (ed.), Freedom from Poverty as a Human Right. Who Owes What to the Very Poor? Oxford: Oxford University Press. Teso´n, F. (1998) A Philosophy of International Law, Colorado: Westview Press. Valentini, L. (2012) “In What Sense Are Human Rights Political?,” Political Studies, vol. 60, no. 1, pp. 180–94. Wenar, L. (2004) “The Unity of Rawls’s Work,” The Journal of Moral Philosophy, vol. 1 no. 3, pp. 265–75.

4 Theories of Human Rights Political or Orthodox – Why It Matters Andreas Follesdal

4.1 INTRODUCTION

One important contribution by a philosophical theory of international legal human rights (ILHR) is to provide normative perspectives and standards to assess the current international human rights regimes. These regimes include treaties, international human rights courts, and treaty bodies; their practices of treaty interpretation and application of ILHR; and their interplay with domestic bodies, other international institutions, and civil society organizations. Such normative perspectives and standards may serve several tasks. Firstly, state authorities, international institutions, citizens, and other compliance constituencies can use them to determine the legitimacy of the international human rights regime in general, or a particular legal norm or judgment. Normative standards of this sort can also guide the parties when treaties are negotiated, criticized, and changed; and whether new treaties and protocols should be established, e.g. to regulate the legal rights and obligations of further actors – such as multinational corporations – and whether rights against such actors should be called “human rights.” Philosophical theories of ILHR also serve important roles in the ongoing development of the human rights practices. Judges and other members of these human rights courts and treaty bodies rely on some normative theory, more or less explicit, when they embark on necessary, highly influential yet This chapter was written under the auspices of ERC Advanced Grant 269841 MultiRights – on the Legitimacy of Multi-Level Human Rights Judiciary; and partly supported by the Research Council of Norway through its Centres of Excellence Funding Scheme, project number 223274 – PluriCourts the Legitimacy of the International Judiciary. The first version was presented at an invited Session on Theories of Human Rights: Political or Moral – and why it matters when assessing international human rights courts, at the World Congress of Philosophy Athens 4–10 August 2013. I am grateful to the participants and comments and discussions there, from Ju¨rgen Habermas, Reidar Maliks, James W. Nickel, and John Tasioulas.

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contested interpretation of the quite vague terms and norms of the treaties (McCrudden 2014). They must draw on some normative premises when interpreting the treaties and adjudicate; e.g. when the European Court of Human Right engages in “dynamic” interpretation (Lemmens 2015), or heeds what the majority of judges agree is an “emerging European consensus,” (Dzehtsiarou 2015), or when that Court requires a state to redraft particular legislation in specific ways, as part of its “pilot judgments” (Tsereteli 2015). These judges must interpret norms, and sometimes make new norms. I submit that a more developed normative theory of ILHR may reduce the risk of domination by judges and of state parties. Indeed, this may also reduce the risk of legitimacy talk becoming a means of alienation. Attention to these normative premises may alleviate though not extinguish Koskenniemi’s fear that legitimacy talk and normative discussions are attempts “to appropriate the voice of international legality to a fully instrumentalist discipline dedicated to serving the interests of power” (Koskenniemi 2009, p. 395). There is currently a discussion about how two families of theories may best be used to develop such philosophical theory of ILHR. They both hold as one desideratum of their accounts that their theory must somehow and to some extent match the current international legal human rights regime. “Orthodox” philosophical accounts primarily consider the appropriate way to think of the concept of a human right. These accounts (which include Griffin 2009; Tasioulas 2012a, 2012b) tend to hold that behind the human rights movement generally – including ILHR – there is a unitary, cogent notion of moral human rights that “constitutes the primary ethical idea driving this movement, giving it both conceptual coherence and normative force” (Tasioulas 2013, p. 2). Assessment of ILHR is partly done by laying out the implications of these moral human rights for such international institutions. Such moral human rights, claim Orthodox theorists, provide a necessary foundation for a sound theory of ILHR. That is, the same understanding of moral human rights is appropriate as a normative premise and touchstone for ILHR as for other situations where human rights are discussed. “Institutional” or “Political” theories pursue another aim and justificatory strategy. They aspire to systematize the existing international legal human rights practice, and seek to end with a theory with sufficient critical standards, without drawing on a prior concept of a human right. Representatives of such Political theories typically hold that “the distinctive nature of human rights is to be understood in light of their role or function in modern international political practice” (Beitz 2009; Buchanan 2013, p. 27; Cruft et al. 2015, p. 6; cf. Rawls 1999). The ILHR are interpreted as standards for various forms of international expressions of concern – by states, NGOs, and other international

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organizations – about how states treat persons on their territory. Such Political theories are “non-foundational” in ways that may foster at least two fears. Even when they succeed in bringing coherence that is not enough of a normative foundation to these institutional practices. Moreover, they may not provide sufficient critical distance to the current practice. Either flaw may render Political theories apologetic comforters for illegitimate human rights institutions, their mandate, or particular policies. The aspiration of Political theories to address ILHR as a primary subject of analysis is thus different from the Orthodox theory perspective. The latter rejects attempts to conceptually bind human rights to particular institutional structures, such as the state system, or kinds of relations and interactions within them, such as intervention. Instead, the Orthodox View offers us a picture of human right as intermediate moral principles: mediating between the fundamental values (if any) that ground them, on the one hand, and the institutional and social structures that implement them, on the other. (Tasioulas 2012b, p. 57)

Several authors have argued that alleged conflicts between such Orthodox and Political theories are overdrawn. For instance, Orthodox authors deny that such theories hold that justifiable ILHR must “mirror” moral human rights, pace Buchanan (Buchanan 2013, p. 15). Indeed, some hold that Political accounts may permit or even require premises drawn from Orthodox accounts (Valentini 2012; Liao and Etinson 2012). The aim of this chapter is primarily to alleviate some of these alleged conflicts, in particular to defend at least one Political theory against charges that it is unduly constrained to actual consensus on premises in defense of ILHR, that it is too closely linked to the current state system to match the universal ambitions of human rights, and that it seeks to avoid normative premises. The last section questions the alleged value added of Orthodox theories’ “intermediate moral principles” of moral human rights for Political theories of ILHR. To fix ideas, Section 4.2 lays out some relevant aspects of an Orthodox account, mainly drawing on Tasioulas’ theory. Section 4.3 sketches parts of one “global” Political theory of ILHR which avoids some criticism against other Political theories. Section 4.4 draws on the theory of reflective equilibrium for justification in normative theory, arguing that both Orthodox and Political theories may be understood to fit this account – in ways which reduce their apparent disagreements. That background also allows us in Section 4.5 to explore the roles of the concept of “human dignity” within this global Political

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theory. The section addresses some concerns that Political theories seek to avoid normative premises, and explores the case for “global public reason” as regards ILHR. Section 4.6 challenges claims that Orthodox accounts provide certain necessary supplements to Political theories. The “intermediate moral principles” of human rights provided by Orthodox theories are not of particular help, nor can that theory easily identify which individuals’ interests are relevant (Liao and Etinson 2012). 4.2 AN ORTHODOX ACCOUNT

Orthodox theories of human rights seek to elaborate a concept of human rights understood as moral rights that all humans possess by virtue of our humanity. These theories rely on a broad range of premises drawn from ordinary, “natural” moral reasoning. Tasioulas lays out such an account in several illuminating contributions. Central features are the following: [H]uman rights are moral rights, possessed by all human beings, simply in virtue of their humanity. In other words, human rights, like natural rights, are universal moral rights. Call this the universality thesis. Second, human rights are to be identified by the use of natural reason, principally ordinary, truthoriented moral reasoning, as opposed to the artificial reason of some institution, such as law, the conventionally accepted reasons upheld by some culture or tradition, or the deliverances of divine revelation. Moreover, it is important to stress that ordinary moral reasoning, in virtue of being “natural,” need not be saddled with the futile ambition of wringing moral conclusions exclusively from value-free propositions about the natural world. Call this the natural reason thesis. (Tasioulas 2013, pp. 2–3)

The moral human rights are further identified on the basis of a normative premise, that a certain set of interests of great importance to the individual merit overriding concern and respect. Different Orthodox theories vary in how they identify and justify this set of overriding interests. Griffin understands “human rights as protections of our normative agency” (Griffin 2009, p. 9; cf. Ignatieff 2001, p. 57). Some hold that the relevant form of agency leaves the scope of options and ability to reason too indeterminate (Raz 2010). It is also unclear why this interest in protection justifies not only rights but human rights of an overriding and unconditional kind (Tasioulas 2010). In contrast, Tasioulas justifies moral human rights from two main grounding values:

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[T]they incorporate both the notion of human dignity – the equal intrinsic objective worth of all human beings – and the diverse elements of a flourishing human life, or universal human interests. (Tasioulas 2012a, p. 7)

For our purposes, it is important that this “concept of human rights” justified on Orthodox accounts is somewhat independent of institutions in one or more of three senses. Many institutions can be understood and justified purely as instrumental, as bundles of legal rules established to carry out our individual obligations in response to these moral human rights. Thus, we have obligations, e.g. to not commit or contribute to torture or slavery – quite independent of the existence of institutions. Tasioulas notes that for other moral human rights the institutional setting of the individual may be part of the background in considering which human rights the individual has – e.g. to a fair trial, or democratic political rights. Thus, the Orthodox account does not assume that all human rights exist in a state of nature, independent of institutions. But this institutional setting is said to not be part of the “concept” of human rights. I submit that the relationship between the “concept” of human rights and the institutional “context” which apparently is not part of that concept remains unclear. Secondly, human rights are non-conditional. Individuals enjoy them due to human features (almost) universally shared, and institutions may not make human rights conditional on the individual’s conduct, performance, or membership. Thirdly, such accounts may serve as critical standards to assess any existing institutions – including the international and regional human rights conventions, courts, and treaty bodies. Orthodox theories seek to give an account of human rights as a moral concept, a concept which in turn will provide possibly a justification as well as criteria for critical assessment of IHRL. Orthodox theories do not aspire to provide a full account of IHRL. In contrast, Political theories typically have that as a central subject matter. 4.3 A GLOBAL POLITICAL THEORY OF HUMAN RIGHTS

Political and Orthodox theories of human rights share several features. They are meant to serve as critical standards to assess existing institutions. At the risk of creating some tension with that objective, theorists across the Orthodox–Political divide also hold as one desideratum that their theory must to some extent match the current international legal human

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rights regime. For Political theories, this requirement is a central concern. These theories typically hold that the social function of ILHR is central to develop a satisfactory theory about IHRL: “the distinctive nature of human rights is to be understood in light of their role or function in modern international political practice” (Cruft, Liao and Renzo 2015, p. 6). Such Political theories often claim that in our present world order, ILHR should be interpreted and assessed as normative conditions on the legitimate exercise of state sovereignty in some sense (Raz 2010; Rawls 1993b; Beitz 2009). Typically, violations of ILHR are matters of international institutional concern (Beitz 2009, p. 137). Such expressions of concern need not be enforced sanctions or military intervention: they may be diplomatic notes, state obligations to give accounts to treaty bodies, or adjudication by an international court or tribunal. As a matter of international law, a few such measures are already in place, especially among states that have agreed to be subject to the ILHR of various human rights treaties. Some critics claim that Political theories are too committed to the state system to acknowledge the universality of human rights. Note that the global Political theory of ILHR laid out here is not state-centric. It allows that the current state-centric world order and the focus on states’ obligations are special cases for such a theory in at least two ways. For clarification, let us think of the “global basic structure” (GBS) as rules and institutions which structure individuals’ actions and shared practices. A GBS could be constituted in various ways: as a world federation, or of political units existing in complete anarchy among themselves, or as is the case now: populated by a set of quite sovereign states within a web of international practices. Those who deny that there is such a GBS may leave out the following paragraphs without much loss to the argument (cf. Follesdal 2011; pace Freeman 2006; Nagel 2005). Note firstly that this global institutional account allows that ILHR may play a role also in a GBS which is not as state-centric as ours. Thus, the roles and thus contents of ILHR may be quite different in a different world order, e.g. in one closer to a world federation of less sovereign states, where the corrective role of more centralized bodies might be similar to that within federations (Zuckert 1996). The contents of IHR will vary with the institutions actually in place, the risks they pose, and the opportunities and risks of international or regional human rights machinery. For instance, in a state system, states are more salient as holders of obligations than are many other actors. Yet this global institutional theory of human rights does not hold that states are necessarily prime obligation holders in principle.

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Thus, in our present world order where states play prominent roles, I submit that our GBS includes domestic basic structures, as well as an international basic structure which includes international law and treaties, and the courts, tribunals, and other bodies they establish. Within this broad account, ILHR are rules which require other bodies to monitor and possibly secure the satisfaction of a range of interests which some bodies – namely states – have primary obligations to secure. In other conceivable GBS, there might be similar justifications for other ILHR that regulate concern among the constituent legal units. On this point this account – and the Orthodox account – thus agrees with Raz that human rights are synchronically universal. They are rights which all people living today have, a feature that is a precondition of, and a result of, the fact that they set limits to state sovereignty and justify accountability across borders. (Raz 2010, p. 31)

Secondly, I submit that ILHR are a special case in that they are as yet incomplete, possibly to be supplemented by more forms of transnational institutional concern that regulate various non-state actors. Within our world order where states are important yet not the only and dominant actors, ILHR may serve other yet similar functions in monitoring powerful non-state actors and authorities such as multinational corporations, guerrilla movements, or religious organizations, partly because in our world order states are not the only significant players which may protect and threaten IHR. Thus, other actors than states may have obligations to be monitored and supported by transnational actors, as regard human rights, such as international organizations and transnational corporations. I submit that this sketch is compatible in broad strokes with the accounts offered by Lafont and Salomon (Lafont 2012; Salomon 2008). One implication is that this global institutionalist theory can provide an indication of what unites human rights claims held against states and non-state actors: that some interests of individuals at stake are significantly better respected and promoted by some such transnational institutionalized concerns. It thus bears some resemblance to Beitz’ view that the distinguishing feature of human rights practices is that each interest thus protected is “intersubjectively recognizable as important or urgent” (Beitz 2009, p. 139) so much that it is “a suitable object of international concern” (ibid., p. 140). However, in principle other bodies than states may bear responsibilities regarding the human rights, if necessary to protect and promote these interests. And the nature of these interests merits closer attention.

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Even though the Orthodox and the Political theories thus have separate or only partially overlapping subject matters, they stand in some tension. Firstly, Political theories hold that the substantive contents of such ILHR are contingent on institutions in very complex ways. The content is partly affected by the fact that our legal and political world order consists not only of somewhat sovereign states but also of domestic, regional, and international bodies that interpret, monitor, and assess ILHR, in very complex relationships. Thus, many regional or international bodies which interpret and adjudicate ILHR serve corrective, supportive, or otherwise complementary functions relative to domestic judiciaries (Spano 2014; Shelton 2006; Carozza 2003; Follesdal 2016; Besson 2015, p. 45). The substantive content of such ILHR depends crucially on this complex institutional interplay. Orthodox theories allow that legal human rights may somehow be defined in light of such institutions. In particular, they do not assume that such human rights must be based on individuals regarded as atomistic, “isolated from his [sic] fellows . . . but from reflection on the right ordering of human relationships in emerging societies” (Tierney 1997, p. 70, quoted by Tasioulas 2012b). Individuals’ moral human rights may justify legal human rights which cannot plausibly be regarded as claims that exist “independent” of institutions, such as rights to influence legislation, or rights to a fair trial. Orthodox theories may grant that premises concerning these institutional practices affect the substantive contents of ILHR. Human rights as moral standards must be implemented (as Finnis translates “determinatio,” Finnis 1980, p. 284), or specified for the more concrete settings. However, the process appears to be far more complex than the term “implementation” suggests. Whether inhabitants of a state have an ILHR to a fair trial or to democratic participation requires two important kinds of normative arguments: firstly, whether there should be such domestic institutionalized legal rights to secure and promote individuals’ relevant interests within complex decision-making institutions. A second step is also required: to determine which such legal rights should be a matter for transnational institutional concern – for instance, by international courts which monitor such domestic political and procedural rights. Political theories may claim that the requisite elaboration of ILHR to be monitored by international courts in complex interplay with domestic institutions is not properly captured by envisioning a “core” of moral human rights which is specified: the institutional interplay and division of labor has more profound impact on the substantive contents of the ILHR. To illustrate, a central condition for an ILHR is that some form of international concern will reliably provide helpful safeguards or other service to

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certain interests of individuals. Note that the services that ILHR provide may be to mobilize other actors than states – e.g. NGOs, domestic parliaments, media, or the political opposition. Several scholars have underscored and explored these important mobilizing roles (Simmons 2009; Dai 2005; Alter 2013). It is part of the Political theory account that there may be such interests or domestic human rights which are not ILHR. For instance, some may argue that the European Convention on Human Rights is appropriately silent on social and economic rights, because a) monitoring and adjudication of such rights by the European Court of Human Rights provide little value added to states which respect the (mainly) civil and political rights protected by that Convention, and b) such license to review creates risks that such authority will be misused by the Court. The argument for an ILHR must thus not only draw on the existence of an important human interest but also on the benefits reliably provided by international institutional concern within the GBS in place. A second source of differences among the two approaches is that Political theories may hold that some ILHR protect or promote practice-dependent interests and claims. Consider that institutions create new opportunity structures, constrain individuals in new ways, create fundamentally new options, and open up for new forms of dependence and risks of domination, for better and for worse. Institutionalized practices thus give rise to new claims among those subject to them. For instance, normative claims to equal treatment, nondiscrimination, or equal shares are particularly strong among those who participate in a shared practice (Scanlon 1997; Follesdal 2015). ILHR which appear to rest on such bases include rights to fair wages and equal pay for work of equal value, the right to social insurance, and to equal access to higher education (United Nations General Assembly 1966, Art 6, 9 and 13). The content and justification of such practice-dependent rights must refer not only to universal human interests and descriptive features of institutions but also to the peculiar normative claims among individuals who jointly uphold institutions (Sangiovanni 2008). Political theories can therefore hold that the particular subject matter of ILHR gives rise to quite distinct normative standards, as compared to human rights considered as a moral concept. Such practice-dependent rights may both be rights held against fellow citizens subject to state institutions and rights held against other individuals who are subject to global legal institutions. In the present world order of states, ILHR arguably help specify the added obligations that arise among individuals who are forced to uphold a system of somewhat sovereign states. They have added claims on one another to ensure that state power is not abused to the detriment of individuals’ interests.

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A consequence of this institutional focus of the Political theory merits mention. The human interests that ground ILHR are not simply those that are intersubjectively recognizable as urgent. This account thus differs from Gilabert’s and Valentini’s approaches – if we take them to be addressing the subject matter of ILHR: We can, on the other hand, formulate a set of abstract rights concerned with extremely important interests shared by all (or most) human beings, whose protection involves responsibilities for anyone who can affect their satisfaction. (Gilabert 2011, p. 443, my emphasis) [B]y a right I mean, with Raz (1986), an interest weighty enough to place duties on others to respect or protect it. Rights so understood are what Wesley Hohfeld (1964) called “claim rights,” that is, rights that are always correlative to duties. (Valentini 2012, p. 181)

The relevant interests of individuals must be specified as those that the international human rights regime can protect. Within a system of states, each of which enjoys large bundles of legal powers and immunities, international human rights are legal standards which regulate what states and other actors may or must do to further promote and protect some of these interests. The justification and identification of ILHR thus require identification of some such interests – duly specified in light of this function, and an argument of comparative benefit: Such ILHR as interpreted and applied by international courts actually enhance these interests, without creating as grave damage to other interests of individuals. Such damages might arise, for instance, if a right created an unreasonable risk that international or regional human rights courts become new sources of domination. Which interests count as important enough to ground ILHR is a question that can only be answered relative to – and in a sense “internal to” – the institutional arrangement within which they play a role. Contrast this to Tasioulas’ Orthodox account: What counts as “minimal” can be merely be determined by the fiat of the institutions of IHRL; they themselves will need to be guided by some independent criterion, one that can be appealed to in critically assessing their decisions. Now, for the orthodox theorist, the idea of “minimalism” will be cashed out in a way that makes ineliminable reference to background moral rights. The first question will be: to what extent does an individual’s interest in certain conditions of a good life generate an obligation on the part of others to furnish them with those conditions? (Tasioulas 2017)

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4.4 REFLECTIVE EQUILIBRIUM

In order to address concerns about the role of consensus and of appeals to “Public Reason” in the Political theories, it helps to recall aspects of a prominent mode of philosophical research on normative issues known as the method of “Reflective Equilibrium” (“RE”). The method can be traced to Aristotle, but was thus named and elaborated by John Rawls (Rawls 1971). Three main features are relevant here. The starting points of normative theory building are non-foundational empirical and normative “considered judgments.” These may include empirical information and normative judgments about particular cases and generalizations and principles, such as the effects of opposition parties in ensuring an accountable government, and such principles as equal respect for all humans. The starting points also include “secondorder judgments”: judgments concerning standards of reasoning, formal requirements on alleged moral principles, etc. In our case, the starting considered judgments concerning human rights include several general principles, such as human dignity, and a cluster of universal human interests. Other such judgments may be the Preamble and articles of the UN Universal Declaration of Human Rights, and various other parts of ILHR. The method of reflective equilibrium is to modify or reject each component considered judgment, and add new ones, guided by objectives to secure consistency and coherence, and sufficient confidence in the resulting modified judgments. The result is a theory which includes these adjusted judgments within a logical structure without internal inconsistencies. Thirdly, one of the distinguishing features of this method is that none of these considered judgments are regarded as in principle impervious to change as a result of the process of reflection. That is, any considered judgment is open for modification or rejection when confronted with other considered judgments. If a particular judgment belonging to the original set of judgments is incompatible with a proposed general principle, it may on reflection be modified, or indeed discarded. A principle with some degree of initial credibility can similarly be discounted or modified if it yields conclusions incompatible with several particular judgments and with other general principles or with empirical findings. Particular judgments and principles are thus justified “from above”: from empirical premises, normative principles, and second-order principles. Principles and second-order principles can also be justified “from below”: by the sets of particular judgments and principles that follow from them.

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This theory of justification helps alleviate some disagreements among the Orthodox and Political theories. Several authors claim that Political theories deny the need for normative premises and instead focus exclusively on laying out the international human rights practice. They insist that necessary premises include moral human rights, and human dignity in particular (Luban 2015). Thus, Griffin holds that “Do not human rights have their own intrinsically valuable purpose: the protection of human dignity? What more point do human rights need than that?” (Griffin 2009, p. 7); McCrudden suggests that “the general justifying aim of human rights is the pursuit of human dignity” (McCrudden 2014, p. 27). In response, the global Political theory of ILHR does not deny that human dignity may be included among the considered judgments. 4.5 EXPLICATING DIGNITY

We should be wary of claims that “human dignity” should enjoy a privileged, immutable position. There are at least two challenges. One main objection to taking dignity as a central premise is that it is too vague on its own to allow specific conclusions about ILHR. Without denying that dignity may be important, institutionalist theories may instead hold that the role and range of ILHR and the theory construction can contribute to explicate that concept itself, and to indicate how institutions should express, protect, and promote this value (Quine 1960, pp. 256–61; cf. Waldron 2013 for similar views). I submit that this is Rawls’ point when he argues that I believe, however, that while the principles of justice will be effective only if men have a sense of justice and do therefore respect one another, the notion of respect or of the inherent worth of persons is not a suitable basis for arriving at these principles. It is precisely these ideals that call for interpretation. The situation is analogous to that of benevolence: without the principles of right and justice, the aims of benevolence and the requirements of respect are both undefined; they presuppose these principles already independently derived. Once the conception of justice is on hand, however, the ideas of respect and of human dignity can be given a more definite meaning. Among other things, respect for persons is shown by treating them in ways that they can see to be justified. But more than this, it is manifest in the content of the principles to which we appeal. . . . The theory of justice provides a rendering of these ideas but we cannot start out from them. There is no way to avoid the complications of the original position, or of some similar construction, if our notions of respect and the natural basis of equality are to be systematically presented. (Rawls 1971, pp. 585–86)

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In the following I contribute to the process of reflective equilibrium by exploring one interpretation of the concept “dignity” in a contractualist vein. The ILHR are regarded as justified on the basis of the human dignity of all by seeking empirical and normative premises that cannot reasonably be rejected by others similarly motivated to seek unrejectable agreement (Scanlon 1998, p. 162; Beitz 1989, p. 23). A second challenge to relying on “dignity” stems from the plurality of worldviews, especially globally. The concern for nonrejectability restricts the domain of premises concerning moral and political values, due to the global pluralism of conceptions of the good life (Rawls 1999). The premises and arguments must thus form part of “global public reason” in this sense (Rawls 1993a, p. 252; Cohen 2006; Beitz 2001). We should distinguish that concern from the added challenge that such contractualist commitments are themselves dismissed by many actors whose compliance is important to secure benefits from ILHR. This commitment to global public reason is not a commitment to limit premises to those that are actually shared. This account should rather interpret human rights as “common” in a special sense, not as the area of agreement among all existing political doctrines or comprehensive views, but as principles for international affairs that could be accepted by reasonable persons who hold conflicting reasonable conceptions of the good life. (Beitz 2001, p. 276)

The search for normative principles which cannot be reasonably rejected does not dismiss all premises which do not enjoy actual unanimous consent. Thus, it appears Tasioulas is mistaken when holding that the core problem with the idea of public reason is the attempt to prescind from the idea that judgments and principles of political morality are to be vindicated at the bar of ordinary truth or natural reason, replacing this with a focus on standards of assessment that are actually shared. (Tasioulas 2013, p. 5)

The aspiration is rather to include only premises which a range of normative theories can accept. The borders of the “reasonable” are contested and partly dependent on the political tasks at hand – including whether there is actual agreement on what counts as unreasonable grounds for objections. Thus, Rawls’s Political theory has been roundly criticized for holding that the premises for a law of peoples must be compatible with “decent” but highly illiberal states (Rawls 1999; Pogge 1994; Follesdal 1997). The contractualist commitment should be

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separate from a related consideration, namely that protection of human interests by means of ILHR may be normatively valuable even within harshly autocratic states that reject a contractualist premise. To bring them on board as subject to and contributors to ILHR treaties and their bodies may enhance valuable interests of their citizens, without imposing unacceptable costs on citizens of more democratic and legitimate states. Thus, what counts as “reasonable” and whose normative consensus is important to consider will vary across the institutions of concern. The implications of lack of actual consensus should not be overdrawn. Two alternatives to this Political theory merit elaboration. Michael Ignatieff has argued that lack of agreement on the contents of human rights should lead to a minimalist list of human rights: The universal commitments implied by human rights can be compatible with a wide variety of ways of living only if the universalism implied is self-consciously minimalist (Ignatieff 2001, p. 56). However, the normative concern for non-rejectability is not mainly about conclusions as regards which human rights individuals have. Rather, the reasonable non-rejectability which should be sought concerns the premises and arguments: which interests of individuals should count, the permissible functions of states in promoting and respecting such interests, and likely impact of international concern of various kinds. Complete unanimity among all existent normative views seems uncalled for: to the contrary, the role of ILHR should rather be shaped in light of some profound disagreements, some of which are reasonable and some of which are not. To illustrate, consider justifications for democratic rights as part of ILHR. This justification is not based on the value of individuals’ interest in selfgovernance alone. That is a contested component of some but not all conceptions of the good life, to such an extent that it appears unreasonable for this purpose. However, less controversial justifications are available, namely that democratic rights – including freedom of the press and other rights necessary to make electoral control effective – are effective means to prevent some standard risks of starvation, and other human rights. Democracies avoid famines (Sen 1999; Sen and Dre´ze 1990) and protect and promote other human rights (Christiano 2011). Such arguments for political rights are based on premises that can less easily be dismissed from a “not unreasonable” position. A contrasting strategy distinct from the global Political theory would respond to value pluralism by seeking to excise all normative premises from the theory. Liao and Etinson appear to interprets Rawls’s Political theory in this way: they hold that Rawls’s

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blanket rejection of any attempt to justify the content of human rights in light of philosophical, moral, or religious ideals seems too strong. After all, while some forms of moral reasoning may not be readily shareable (e.g., religious reasoning), some philosophical forms of moral reasoning may in fact be quite shareable. As we have seen, philosophical notions such as human dignity and worth are found in many prominent declarations as well as national constitutions and have been central to the reception of human rights across cultures. (Liao and Etinson 2012, p. 335)

In response, note that several Political theories – including Rawls’s – do not aspire to avoid normative premises. However, these normative premises must at the same time be sufficiently precise to allow some conclusions as regards the normative standards of ILHR, and be permitted by global public reason. Thus, Rawls’s account is explicitly tailored to be acceptable to “decent hierarchical societies” that secure “human rights proper,” though not necessarily to rouge states (Rawls 1993b, p. 68). 4.6 THE CONTRIBUTION OF ORTHODOX THEORIES TO POLITICAL THEORIES

The final issue to be addressed is whether Orthodox theories about moral human rights provide necessary premises to Political theories, and to the global Political theory in particular. I shall deny this, as regards both moral human rights and concerning their justification in paramount human interests. In the global Political theory sketched above there is a need to specify some set of interests of human beings which ground claims in the form of ILHR, which the human rights courts and treaty bodies should contribute to protect and promote. However, there is no obvious role for any “intermediate” moral human rights, which would be the contribution of Orthodox theories. Similarly, the norms Buchanan bases his account on are based on human interests rather than human rights. Luban appears to disagree: I agree that moral human rights (on the orthodox conception) and, therefore, IHRL, insofar as it gives effect to those rights to the extent that it is appropriate for individual legal rights in international law to do so, are both importantly grounded in considerations of status equality (or human dignity) and wellbeing (or universal human interests). But neither of these grounds can play their grounding role unless we are already operating with a conception of universal moral rights. Instead of displacing the idea of a universal moral

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He argues that mobilization around ILHR requires that individuals must hold that ILHR matter to them morally, e.g. invoking feelings of shame. Luban goes on to argue that “ILHRs are capable of mobilizing shame because they concern themselves with human dignity.” But human dignity is not moral human rights. Instead, it is a normative premise for such moral human rights. So it is unclear what moral human rights add to the normative commitment to human dignity Furthermore, the set of human interests relied upon by Orthodox theories are neither to be regarded as the contribution of such theories nor are these interests obviously appropriate for the global Political theory. The global Political theory would agree with the Preamble of the European Convention on Human Rights that the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective.

The object is of course not to protect natural human rights, but human beings. Here there is agreement with Orthodox theories: Tasioulas argues that “paradigmatic human rights systematically protect important human interests,” and that his theory “appeals to both human status and the elements of the human good in generating human rights” (Tasioulas 2013, pp. 6 and 7). Where the two kinds of theories part ways is the identification and specification of those interests. What the Political theories would appear to require are some premises concerning certain relevant human interests, suitably identified and specified in light of the peculiar institutional role ILHR play in seeking to promote domestic authorities’ protection and promotion of certain rights. These interests must thus be selected and expressed with this function in mind, and constrained by global public reason. 4.7 CONCLUSION

These reflections have sought to clarify and defend one “global” Political theory of international legal human rights against some criticism raised by “Orthodox” accounts of moral human rights, and to challenge the claim that Orthodox accounts can easily deliver premises which the Political theories require.

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The aim has been to defend at least one Political theory against charges that it is unduly constrained to actual consensus on premises in defense of ILHR, that it is too closely linked to the current state system to match the universal ambitions of human rights, and that it seeks to avoid normative premises. This institutional account holds that the “political” function these human rights serve has implications for the mode of arguments and the subject matter – indeed, also implications for what counts as relevant and urgent interests. That conclusion is at odds with several authors who hold that Political and Orthodox conceptions can not only be reconciled but indeed that Orthodox theories supplement the Political theory in necessary ways. In particular, some argue that political conceptions are unable to specify the substantive contents of human rights absent some particular further premises – precisely such as those provided by an Orthodox account concerning important interests (Liao and Etinson 2012). We may surely agree that more premises are needed that are provided by several of the institutional or political theories surveyed here. But I submit that the Orthodox set of interests is not obviously an answer to the question of which human interests international bodies should be concerned with: the latter must draw on a set of relevant interests which is constructed for this purpose. Some of these interests do not “exist” independently of institutions, and they are relevant only insofar as international concern of the form provided by international treaties and their bodies may promote their protection and promotion by states. These notes are of course not addressing these important tasks. To the contrary, I suggest that a specification of these relevant interests must be constructed in part on the basis of detailed understandings of the roles, risks, and contributions of national and international institutions and authorities within our global basic structure. BIBLIOGRAPHY Alter, K. (2013) The New Terrain of International Law: International Courts in International Politics, Princeton, New Jersey: Princeton University Press. Beitz, C. R. (1989) Political Equality, Princeton, New Jersey: Princeton University Press. 2001) “Human Rights as a Common Concern,” American Political Science Review, vol. 95 no. 2, pp. 269–282. (2009) The Idea of Human Rights, Oxford: Oxford University Press. Besson, S. (2015) “Human Rights and Constitutional Law: Patterns of Mutual Validation and Legitimation,” in Cruft, R. et al. (eds.), Philosophical Foundations of Human Rights, Oxford: Oxford University Press, pp. 279–299.

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Buchanan, A. (2013) The Heart of Human Rights, Oxford: Oxford University Press. Carozza, P. G. (2003) “Subsidiarity as a Structural Principle of International Human Rights Law,” American Journal of International Law, vol. 97, pp. 38–79. Christiano, T. (2011) “An Instrumental Argument for a Human Rights to Democracy,” Philosophy and Public Affairs, vol. 39 no. 2, pp. 142–176. Cohen, J. (2006) “Is There a Human Right to Democracy?” in Sypnowich, Christine (ed.), The Egalitarian Conscience: Essays in Honour of G.A. Cohen, Oxford: Oxford University Press, pp. 226–248. Cruft, R. et al. (2015) “The Philosophical Foundations of Human Rights: An Overview,” in Cruft, R. et al. (eds.), Philosophical Foundations of Human Rights, Oxford: Oxford University Press, pp. 1–44. Dai, X. (2005) “Why Comply? The Domestic Constituency Mechanism,” International Organization, vol. 59 no. 2, pp. 363–398. Dzehtsiarou, K. (2015) European Consensus and the Legitimacy of the Strasbourg Court, Cambridge: Cambridge University Press. Finnis, J. (1980) Natural Law and Natural Rights, Oxford: Oxford University Press. Follesdal, A. (1997) “The Standing of Illiberal States: Stability and Toleration in John Rawls’ ‘Law of Peoples,’” in Koller, P. & Puhl, K. (ed.), Current Issues in Political Philosophy: Justice in Society and World Order, Vienna: Verlag Ho¨lder-PichlerTempsky, pp. 165–174 (2011) “The Distributive Justice of a Global Basic Structure: A Category Mistake?” Politics, Philosophy and Economics, vol. 10 no.1, pp. 46–65. (2015) “Social Primary Goods,” in Mandle, J. and Reidy, D. (eds.), The Cambridge Rawls Lexicon, Cambridge: Cambridge University Press, pp. 643–647. (2016) “Subsidiarity and International Human Rights Courts: Respecting Self Governance and Protecting Human Rights – or Neither?” Law and Contemporary Problems, vol. 79, no.2, pp. 147–163. Freeman, S. (2006) “Distributive Justice and the Law of Peoples,” in Martin, R. and Reidy, D. (eds.), Rawls’s Law of Peoples: A Realistic Utopia?, Oxford: Blackwell, pp. 243–260. Gilabert, P. (2011) “Humanist and Political Perspectives on Human Rights,” Political Theory, vol. 39 no. 4, pp. 439–467. Griffin, J. (2009) On Human Rights, Oxford: Oxford University Press. Hohfeld, W. N. (1964) Fundamental Legal Conceptions as Applied in Judicial Reasoning, New Haven: Yale University Press. Ignatieff, M. (2001) Human Rights as Politics and Idolatry, Princeton: Princeton University Press. Koskenniemi, M. (2009) “Miserable Comforters: International Relations as New Natural Law,” European Journal of International Relations, vol. 15, 395–422. Lafont, C. (2012) Global Governance and Human Rights – Spinoza Lectures, Amsterdam: Van Gorcum. Lemmens, P. (2015) “The European Court of Human Rights,” in De Baere, G. & Wouters, J. (ed.), The Contribution of International and Supranational Courts to the Rule of Law, Cheltenham: Edward Elgar Publishing, pp. 225–241. Liao, S. M. and Etinson, A. (2012) “Political and Naturalistic Conceptions of Human Rights: A False Polemic?” Journal of Moral Philosophy, vol. 9, pp.327–352.

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Luban, D. (2015) “Human Rights Pragmatism and Human Dignity,” in Renzo, M. et al. (eds.), Philosophical Foundations of Human Rights, Oxford: Oxford University Press, p. 263. McCrudden, C. (2014) “Human Rights: Law, Politics and Philosophy,” [Electronic]: www .wzb.eu/sites/default/files/u32/chr_mccrudden_human_rights_law_politics_and_ philosophy.pdf Nagel, T. (2005) “The Problem of Global Justice,” Philosophy and Public Affairs, vol. 33, pp. 113–147. Pogge, T. W. (1994) “An Egalitarian Law of Peoples,” Philosophy and Public Affairs, pp. 195–225. Quine, W. V. O. (1960) Word and Object, Cambridge, MA: MIT Press. Rawls, J. (1971) A Theory of Justice, Cambridge, MA: Harvard University Press. (1993a) Political Liberalism, New York: Columbia University Press. (1993b) “Law of Peoples,” in Shute, S. and Hurley, S. (eds.), On Human Rights: The Oxford Amnesty Lectures 1993, New York: Basic Books, pp. 175–216. (1999) The Law of Peoples, Cambridge, MA: Harvard University Press. Raz, J. (1986) The Morality of Freedom, Oxford: Clarendon Press. (2010) “Human Rights without Foundations,” in Besson, S. and Tasioulas, J. (eds.), The Philosophy of International Law, Oxford: Oxford University Press, pp. 321–338. Salomon, M. E. (2008) Global Responsibility for Human Rights: World Poverty and the Development of International Law, Oxford: Oxford University Press. Sangiovanni, A. (2008) “Justice and the Priority of Politics to Morality,” Journal of Political Philosophy, vol. 16 no. 2, pp. 137–164. Scanlon, T. M. (1997) The Diversity of Objections to Inequality. The Lindley Lecture, Lawrence, KS: University of Kansas Press. (1998) What We Owe to Each Other, Cambridge: Harvard University Press. Sen, A. K. (1999) “Democracy as a Universal Value,” Journal of Democracy, vol. 10 no. 3, pp. 3–17. Sen, A. K. and Dre´ze, J. (1990) Hunger and Public Action, Oxford: Oxford University Press. Shelton, D. (2006) “Subsidiarity and Human Rights Law,” Human Rights Law Review, vol. 27, pp. 4–11. Simmons, B. A. (2009) Mobilizing for Human Rights: International Law in Domestic Politics, New York: Cambridge University Press. Spano, R. (2014) “Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity,” Human Rights Law Review, vol. 14 no. 3, pp. 1–16. Tasioulas, J. (2010) “Taking Rights out of Human Rights,” Ethics, vol. 120 no. 4, pp. 647–678. (2012a) “Towards a Philosophy of Human Rights,” Current Legal Problems, vol. 65, pp. 1–30. (2012b) “On the Nature of Human Rights,” in Ernst, G. and Heilinger, J. (eds.), The Philosophy of Human Rights: Contemporary Controversies, Berlin: de Gruyter, pp. 17–61. (2013) “Human Rights, Legitimacy and International Law,” American Journal of Jurisprudence, vol. 58 no. 1, pp. 1–25.

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(2017) “Exiting the Hall of Mirrors: Morality and Law in Human Rights,” in Campbell, T. & Bourne, K. (ed.), Confronting Moral, Political and Legal Approaches to Human Rights, (to Appear) London: Routledge. Tierney, B. (1997) The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150–1625, Grand Rapids/Cambridge: Eerdmans Publishing Company. Tsereteli, N. (2015) Legal Validity and Legitimacy of the Pilot Judgment Procedure of the European Court of Human Rights PhD dissertation, Oslo: University of Oslo. United Nations General Assembly (1966) International Covenant on Economic, Social and Cultural Rights. Valentini, L. (2012) “In What Sense Are Human Rights Political?” Political Studies, vol. 60 no. 1, pp. 180–194. Waldron, J. (2013) “Human Rights: A Critique of the Raz/Rawls Approach,” NYU School of Law, Public Law Research Paper No. 13–32. Zuckert, M. P. (1996) “Toward a Theory of Corrective Federalism: The United States Constitution, Federalism, and Rights,” in Katz, E. & Tarr, G. A. (ed.), Federalism and Rights, Lanham, MD: Rowman & Littlefield, pp. 76–100.

5 Mediating the Theory and Practice of Human Rights in Morality and Law David Ingram

5.1 INTRODUCTION

The thesis I propose to defend in this chapter asserts that an account of human rights that is responsive to the full range of human rights practice must allow that human rights fulfill multiple complementary functions: political, legal, and moral. While legal and political accounts mainly highlight the function of human rights in promoting social justice, moral accounts mainly highlight the function of human rights in protecting vital individual interests. The account I defend posits a closer connection between these functions by examining the practical conditions underlying institutionalized (specifically justiciable) human rights. My argument has four parts. Part I examines the ambiguous moral-legal status of human rights in official human rights documents and practices. The second part discusses several iconic political and legal theories of human rights that have been advanced by John Rawls and Ju¨rgen Habermas. Their theories, I argue, reveal a tendency inherent in the legalpolitical approach to deviate from moral features of human rights practice. Drawing from James Griffin and Habermas, Part III shows how moral theories of human rights suffer from an opposite defect. Part IV concludes with a defense of my own pluralistic account, which endorses a stronger role for democratic legitimation than that put forward by Allen Buchanan. 5.2 PART I: THE AMBIGUOUS STATUS OF HUMAN RIGHTS

The Preamble to the Universal Declaration of Human Rights (UDHR, 1948) describes human rights in a variety of ways that are by no means harmonious. They are described as “the highest aspiration of the common people” and “a

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common standard of achievement for all peoples and all nations,” universal and effective recognition of which should be spread through “teaching and education.” Such recognition is further tied to the “dignity and worth of the human person and in the equal rights of men and women” that have promoted “social progress and better standards of life in larger freedom.” So construed, human rights are moral aspirations in two senses: first, they progressively interpret freedom in terms of “better standards of life”; second, they progressively extend to all persons equally, solely in virtue of their “inherent dignity and worth.” Consonant with this second aspiration, Article 2 asserts that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Belying this moral interpretation of human rights, with its emphasis on the equal dignity of the individual and social progress in living conditions, is a juridical interpretation that describes human rights as legal claims that “should be protected by the rule of law.” This clause is immediately followed by another clause that adds: “whereas it is essential to promote the development of friendly relations between nations . . .” Here the aim of human rights is political: the facilitation of international peace and cooperation. Much ink has been spilled contrasting this last aim, with its recognition of the legal sovereignty of nations (as set forth in Article 2(7) of the UN Charter), and the legal protection of individuals’ human rights, if need be, by contravening national sovereignty (as permitted under Chapter VII, Articles 41 and 42). The problem of reconciling these aims is an important one but remains outside the scope of this chapter.1 My problem concerns the conceptual tension between moral and legal interpretations of human rights. To the extent that government officials view human rights as setting forth legal limits demarcating tolerable conduct between persons and states, they are inclined to limit their core content to protecting essential constitutional liberties from criminal predations by providing benchmarks for sanctions and military intervention.2 Conversely, by conceiving human rights as evolving

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As Buchanan notes, human rights and state sovereignty can also reinforce each other. Enforcing human rights by compelling global economic multilaterals (GEMs) such as the WTO to modify patent provisions of the TRIPS agreement that currently prevent states from cheaply producing life-saving pharmaceuticals for their citizens could strengthen the sovereign power of states to carry out their human right responsibilities to not only respect and protect human rights but to promote them domestically (Lafont 2014). This conforms to the narrow version of the “responsibility to protect” doctrine that was adopted at the 2005 UN World Summit, which replaced the broader version, drafted by the 2001

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moral standards and utopian aspirations demarcating a life of human dignity, ethicists run the risk of succumbing to human rights inflation, endorsing manifesto rights that do not refer to basic human needs meriting institutional protection. In truth, the tension between moral and legal interpretations of human rights is more subtle than the above description suggests. A narrow moral interpretation, focusing on minimal or selective protection of individual core interests, runs the risk of rights truncation. Likewise, a broad legal interpretation, expanding protection to include superfluous welfare functions, runs the risk of rights inflation. To correct tendencies toward truncation and inflation, it is advisable to develop a comprehensive account of human rights that takes into consideration the multiple and complementary functions that both legal and moral human rights serve.3 But how? Bottom-up accounts that hew more or less closely to actual human rights documents and their practical implementation have the advantage of reflecting a working compromise between many different moral standpoints and legal aims. Nonetheless they suffer, as we have just seen, from lack of theoretical coherence. To mitigate this problem, the UDHR, which is not a legally binding treaty, was selectively codified by subsequent human rights covenants and treaties. The interpretation and enforcement of these treaties, which bind only signatory states, have been marked by disagreement and political expediency from the beginning. In practice, only gross violations of civil and political rights – genocide, ethnic cleansing, and the like – have elicited occasional international humanitarian intervention and criminal prosecution. Severe deprivations of economic welfare have not inspired similar responses.4

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International Commission on Intervention and State Sovereignty (ICISS), that also targeted severe risks to life posed by natural environmental catastrophe. The latter version was deemed to be too controversial and too difficult to apply. Perhaps one reason for resistance to the broader version is that the most powerful government in the world, the United States, has ratified the International Covenant on Civil and Political Rights (ICCPR) but not the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Too, violations of civil and political rights, understood as violations of negative duties to refrain from harming others, are often thought (mistakenly, in my opinion) to be worse than neglect of economic, social, and cultural rights, which usually involve omissions in the performance of positive duties to provide assistance. James Nickel (2006, p. 270) lists fourteen of these functions, ranging from standards of criminal prosecution and adjudication used by courts, standards of assessment used by NGOs, UN committees, governments, and global lending institutions (such as the IMF) in determining progress along some dimension of welfare, standards of government conduct for criticizing, sanctioning, or militarily intervening, and guides for education, constitution-building, political action, and aspirational reform. See note 2.

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Judging from historical practice, one might conclude that the right to welfare does not merit protection comparable to that afforded to other human rights, but historical practice, lack of international consensus, and difficulty of implementation alone do not establish this fact, which would require higher-order theoretical reflection on the meaning and function of human rights in general. In response to this objection, a defender of the practical approach can object that no higher-order theoretical reflection is needed to determine whether a right to welfare is a human right. Not only does the UDHR assert a person’s right to “a standard of living adequate for . . . the wellbeing [of a person] and his family” (Art. 25.1), but the ICESCR asserts the same right as a legally binding right (A.3.5). Furthermore, if international law does not currently contain a complete list of rights that should be universally recognized, it nonetheless prescribes procedures for adding more rights. A group lobbying to add a hitherto unrecognized right to a healthy environment can persuade the United Nations Sub-Commission on Human Rights to draft a set of principles to that effect, assuming that there is growing international consensus (as reflected in local charters and conventions) to do so. An endorsement of the draft principles by the General Assembly would further strengthen the case that a human right to a healthy environment exists, which would then become conclusive upon the widespread ratification of legally binding treaties asserting this fact.5 Of course, the formal positing of a right in international law cannot tell us whether it should have been posited in the first place. More importantly, human rights courts must appeal to norms that are not expressly stated in treaties in applying human rights law. For example, despite the fact that a human rights framework was not incorporated into the 1992 United Nations Framework Convention on Climate Change (UNFCCC) or the Kyoto Protocol (1997), the Chair of the Inuit Circumpolar Conference submitted a petition in 2005 to the Inter-American Commission on Human Rights on behalf of the Inuit of the Arctic regions of the United States and Canada arguing that the impact of global climate change caused by the “acts and omissions” of the United States violated the fundamental human rights of the Inuit peoples. Subsequent petitions by the Maldives and Small Island Developing States sought to incorporate a human rights framework in the negotiating process of UNFCCC. A report entitled “Climate Change and Human Rights” (2008) that was developed by the International Council on 5

I draw this example from Griffin (2008), pp. 203–04.

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Human Rights notes the advantage of shifting from aggregate cost–benefit analysis (emissions rights) to analysis of climate impact on individual human lives (human rights) in setting minimally acceptable outcomes and procedures for legal implementation. Should plaintiffs’ petitions and supporting documents reach international courts, a difficult decision will have to be made whether a right to a healthy environment is a human right pursuant to other recognized human rights. A legal positivist who sought to completely eschew any reference to normative theory in making this decision would have little reason on which to base her decision. The Statute of the International Court of Justice seems to reject legal positivism as well, stating that, besides treaties and customary international law, its decisions will be based on such “subsidiary means” as general principles of law recognized by all nations, past judicial decisions, and most importantly the teaching of highly qualified publicists (i.e. experts) (Article 38.1). The use of such subsidiary means seems to require, as some legal scholars note, further appeal to legitimate interests, jus cogens norms, and most importantly the normative idea of humanity and the dignity of the human person as discussed in both binding and non-binding conventions.6 So, not just theoretical reflection, but theoretical moral reflection, unavoidably enters into the legal practice of human rights (Ingram 2014a, 2014b). Legal positivists worry that such top-down theorizing about human rights will subordinate practical considerations to theoretical reflection in ways that misinterpret or undermine doctrinal human rights legal practice.7 Agreeing with Griffin that human dignity is intrinsically bound up with living integrally 6

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See my discussion (2014a) of Judge Elihu Lauterpacht’s separate opinion delivered to the ICJ in the Genocide case (1993) which affirms the supremacy of jus cogens norms over both UNSC decisions and treaty law. In justly criticizing what he calls the “mirroring view” (Buchanan, pp. 14–23), which holds that international human rights law is justified only insofar as it appeals to moral human rights, Buchanan notes that the UDHR and the ICESCR impose duties on states to not only forbear from harming their subjects but to provide them with a minimum level of well-being (32). States must act for the sake of their individual subjects (27) – by securing moral aims of a social nature, such as welfare, public safety, and peaceful coexistence – that are irreducible to (indeed, go beyond) realizing their individual interests taken singly. Institutional means such as these thus comport with collectivist moralities, thereby circumventing what Rawls and to a certain extent Buchanan perceive to be a liberal bias in favor of individualism inherent in the UDHR (314). That said, Buchanan embraces the UDHR’s status egalitarianism, which prohibits any discrimination in the enjoyment of human rights (28). This egalitarian emphasis, along with Buchanan’s concession that human rights norms mandating social aims need not take the form of human rights (40), suggests a closer link between moral and legal human rights than Buchanan acknowledges (Letsas 2014). This link is strongest in that area of humanitarian law dealing with gross criminal conduct involving the violation of justiciable human rights not to be tortured, kidnapped, murdered, arbitrarily imprisoned, etc. (as Buchanan notes [314], it is

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with one’s community and environment, a human rights court could conclude that a government’s decision to invest in destructive, polluting industry violates the hitherto un-codified individual human right of its (and other nations’) citizens to a healthy environment. Conversely, after reading Rawls, a human rights court could decide that the very concept of human dignity as it appears in the UDHR reflects a Western bias in favor of individualism, so that a government’s decision to advance the common good of its citizens in the long run through temporary investments in destructive, polluting industry – even by denying them the right to veto this decision through some form of electoral recall – is not a violation of an individual human right. Such disputed theories about what the legal/doctrinal practice of human rights ought to be often single out a primary function that human rights properly fulfill. As we shall see, some of the most frequently mentioned functions that human rights are said to serve are founding constitutional liberties (Habermas 1996, 1998a, 2001), setting benchmarks for nonintervention and egalitarian cooperation between states (Rawls 1999), selecting high-priority moral duties enjoining the protection of human beings from grave harm to their individual agency, however this is defined (Griffin 2008; Habermas 2010), and articulating moral aspirations enjoining the creation of a just society wherein each may achieve a flourishing and fulfilling life (Pogge 2008). Besides defending an exclusive core function that aims to critically broaden or restrict official lists of human rights, theoretical approaches tend to downplay or even dismiss the importance of historical experience and practical limitations in shaping human rights traditions. No doubt most accounts of human rights fall somewhere in between the extremes of pure theoretical reconstruction and practical interpretation (Griffin 2008; Buchanan 2013; Habermas 2010). However, I contend that theoretical and practical accounts of human rights, even when suitably conjoined, retain residues of elitism unless they are submitted to dialogical criticism and emendation that cuts across cultures and permits local flexibility in application and interpretation. This view resonates with the spirit of Habermas’s democratic, or discourse theoretic, account of human

weaker in that area of humanitarian law addressing humanitarian crimes, such as genocide). In addition to these points, I would argue that moral norms pertaining to customary human rights law, such as the peremptory and compelling norms of jus cogens prohibiting slavery and torture, and the “requirements of public conscience” and “laws of humanity” mentioned in the Martens Clause that was inserted into the 1899 Hague Convention II (Regulations on the Laws and Customs of War on Land) also enter into adjudicating human rights. See, for example, the Palestinian Wall Advisory Opinion of the ICJ (2004) and my discussion of this case (Ingram 2014a).

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rights; an approach, I argue below, that has much to recommend once it is suitably qualified. Although a discourse theoretic account of human rights represents a topdown account of human rights – and as such poses the risk of theoretically misrepresenting legal and moral human rights practice – it is unique in its theoretical aim, which is to transfer the discourse of human rights from elite philosophical theory to democratic practice. However, before discussing the limits and possibilities of Habermas’s discourse theory for moral and legal practice, it behooves us to first examine the political theory of human rights famously developed by Rawls, whose practical limitations Habermas himself singles out for criticism. 5.3 PART II: POLITICAL AND LEGAL THEORIES OF HUMAN RIGHTS

Social contract theories view human rights as part of a subset of moral norms that exclusively underwrite just cooperation between legal subjects, as distinct from moral norms that articulate the dignity of the individual qua human being (what I call the moral approach to human rights). Paradigmatic examples of this view may be found in the theories of Rawls and Habermas. Leaving aside their disagreement over the proper way to justify and interpret human rights,8 both philosophers agree that deducing human rights from a list of universal human interests and capabilities, which such rights ostensibly serve to protect and promote, wrongly presumes consensus on what these goods and capabilities are. By contrast, they believe that ascertaining features of legal agency that require human rights protection is less controversial.

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There now exists a vast literature comparing Rawls and Habermas’s respective political theories (see Hedrick 2010 and Finlayson & Freyenhagen 2011), much of it addressing their contrasting theories of human rights (Ingram 2003; Baynes 2009; Forst 2011; Flynn 2014). Their debate in the 1990s (Rawls 1993b; Habermas 1995) already highlighted differences between their respective grounding of basic constitutional rights, with Habermas favoring a conceptual understanding of civil and political rights as deontological trumps and Rawls interpreting these same rights as primary goods enjoying conditional priority over economic goods. In my opinion, social contract theory should not prioritize categories of rights (or other values) but should underwrite thinner norms for democratically negotiating the (multicultural) meaning and ranking of such substantive goods. I find missing in the Rawls–Habermas literature any discussion of how this democratic procedure can be integrated into courts (including, ideally, international constitutional courts) that are delegated the task of adjudicating basic rights. (See Ingram 2014a.)

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5.3.1 Rawls: Human Rights within The Law of Peoples I begin with Rawls’s political approach to human rights as laid out in The Law of Peoples because it illustrates a relatively extreme deviation from the moral approach contained in the UDHR. Rawls develops his approach with the intention of guiding the foreign policy of liberal democracies in their dealings with each other and with a variety of nonliberal, undemocratic regimes. This state-centric approach is justified on the grounds that peoples organized as states are (and will likely remain) the primary agents for enforcing human rights, so that what counts as a human right must be a right that all nations recognize. The aim of securing cooperation with illiberal and undemocratic peoples whose common good conceptions of legal justice meet an acceptable threshold of moral decency dictates a contractarian method of reasoning that Rawls developed in Political Liberalism (1993b), which sought to show how incommensurable comprehensive systems of belief within liberal democracies that meet a threshold of reasonableness converge or overlap in supporting strictly free-standing liberal democratic values. In the Law of Peoples a similar contractarian method is used to defend the stability of a “realistic utopia” composed of peace-loving and justice-seeking peoples that overlap in their agreement on eight principles of international cooperation. Rawls maintains that all decent and liberal democratic peoples would agree to enforce a special class of urgent rights, “such as freedom from slavery and serfdom, liberty (but not equal liberty) of conscience, and security of ethnic groups from mass murder and genocide” (1999, p. 79). Most striking in this formulation is the qualification that human rights need not be exercised by all persons in the same way, if they happen to belong to associationist societies that tailor that exercise to accord with the specific cultural roles and interests of different religious and gendered sub-groups within society. Rawls explains that decent societies must permit individual members of such groups to be represented by one of their own in a consultation body to which government leaders are to be held accountable. However, individuals would not have an equal vote to express their personal preferences qua individuals in electing representatives. In addition to non-aggression, Rawls also presents these rights as conditions that authoritarian and outlaw regimes that fall below the moral threshold of decency must secure for their peoples if they are to remain immune from sanctions and external military intervention. Last but not least, Rawls says that such universal human rights “set the limit to the

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pluralism among peoples” (1999, p. 80). Rawls is emphatic that these three functions – to specify, respectively, a necessary condition for recognizing the decency of a society’s political and legal institutions, a sufficient condition for excluding justified and forceful intervention by other peoples, and a limit to the pluralism among peoples – serve to distinguish human rights from “constitutional rights or from rights of liberal democratic citizenship, or from other rights that belong to certain kinds of political institutions, both individualist or associationist” (1999, pp. 79–80). Thus, while he accepts Articles 3 through 18 of the Universal Declaration of Human Rights (1948) – which he says characterize human rights proper – as well as their secondary implications, such as the human rights covered in special conventions on genocide (1948) and apartheid (1973), he expressly rejects as a parochial Western interpretation Article 1’s assertion that “All human beings are born free and equal in dignity and rights” and that they “are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” (1999, 80n23). He rejects other rights stated in the UDHR, such as Article 22’s right to social security and Article 23’s right to equal pay for equal work, not because they reflect a Western liberal bias, but because they presuppose specific types of economic and legal institutions that are best characterized as one among many possible means for securing basic human rights, such as the right to subsistence. Because Rawls understands the function of human rights doctrine in a law of peoples as setting forth conditions for the conduct of war and stipulating a threshold of domestic conduct sufficient to warrant legal immunity from foreign intervention, he endorses a short list of human rights whose violations are widely accepted to be the most serious, a controversial approach to human rights that Joshua Cohen and others (Cohen 2004b; MacLeod 2006) have designated “enforcement minimalism.” But the other two functions Rawls mentions, which fall under the different heading of “justificatory minimalism,” require that he endorse a short list for other reasons. This list must be minimal, Rawls argues, because liberal democracies should voluntarily cooperate with some non-liberal, non-democratic nations in upholding these rights. They should do so precisely because these other nations base their legal and political systems on a decent, common good, conception of justice that merits equal respect, even if it is not fully reasonable or just by Western, liberal democratic standards. To constrain these regimes to adopt liberal democratic institutions using even soft forms of government persuasion and diplomacy would violate liberal principles of toleration and reciprocity essential to peace.

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Does Rawls’s minimalist approach commit him to a partial or incomplete account of human rights?9 Rawls endorses Article 3 of the UDHR, which says that “everyone shall have the right to life, liberty, and security of person.” But he excludes Article 21 of the UDHR, which asserts that “everyone has the right to take part in the government of his country . . . through freely chosen representatives” and that these representatives will be chosen through “periodic and genuine elections” based on “universal and equal suffrage.” Rawls’s enforcement provision also excludes a more modest human right to have one’s interests represented by means of a decent consultation hierarchy. The reason for excluding a robust human right to political participation, however, is empirical, for Rawls concedes that “[s]hould the facts of history, supported by the reasoning of political and social thought, show that hierarchical regimes are always, or nearly always, oppressive and deny human rights, the case for liberal democracy is made” (1999, p. 79). Contractarian theory need not be so minimalist, of course, and less truncated applications of it to problems of international justice and human rights could warrant a more cosmopolitan, liberal democratic theory. Thomas Pogge (2006), for instance, criticizes Rawls for having abandoned the contractarian approach he developed in A Theory of Justice (1973) and Political Liberalism (1993). According to Pogge, the two-stage method of reasoning developed in the early theory, which first justifies general principles of justice and then shows how these are to be applied contextually in subsequent stages of constitutional and institutional embodiment, is abandoned in working out a law of peoples. Instead, Rawls deploys the devise of the original position to show 9

By restricting sanctions and military intervention to the most severe human rights violations, enforcement minimalism acknowledges the detrimental impact these remedies have on the secure enjoyment of many institutional human rights that outlaw states otherwise promote. Enforcement minimalism that focuses exclusively on remedying mass extermination, expulsion, ethnic cleansing, and enslavement (the proposal advanced by Jean Cohen, 2004a) regresses behind current UN thinking about the deadly impact of poverty, climate change, health pandemics, and financial crises on global security (Lafont 2014). Recommendations to divide human rights into two tiers (enforceable and non-enforceable) thus regress behind the “indivisibility” doctrine of the Vienna Declaration (1993). Accommodating this objection, Nickel (2006, pp. 274–5) sensibly argues that dividing human rights into two tiers – high priority/universally accepted and low priority/less universally accepted – allows us to retain a full complement of human rights whose ranking for purposes of adjudication and enforcement can be adjusted over time. Some difficulties with such a view are that high-priority rights might not be universally accepted (see note 2); the scale of a rights violation, rather than its priority, might matter most in decisions regarding enforcement; 3) massive violations of lowpriority rights may effectively impede the enjoyment of high-priority rights; and the interconnectedness of rights makes distinguishing higher- and lower-level rights difficult (Nickel pp. 274–5). Too, the question of enforceability must address not only states but also GEMs and transnational corporations (TNCs). (See note 29 and Lafont 2014).

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that his law of peoples comports, first, with an impartial consensus among liberal democratic peoples and, second, with an impartial consensus among decent peoples. No deeper justification of his eight principles is given to support their superiority in comparison to other alternatives. When Rawls does defend his list of human rights and his proposed duty to assist burdened peoples against cosmopolitan alternatives that seek to extend the principles of justice worked out for liberal-democratic society globally, he appeals to the absence of a global basic structure and disagreement on liberal democratic values, assumptions that have been questioned by Pogge and others. Allen Buchanan (2006), for instance, questions Rawls’s presumption of extreme value pluralism. Rawls’s presumption seems to depend on the mistaken view that persons inhabiting associationist societies are incapable of rationally abstracting a concept of individual identity and individual right from a concept of the collective good.10 If the presumption depends on the moral claim that it is unreasonable to expect them to do so, then that presumption has not been convincingly justified. Rawls compares our respect for decent hierarchical peoples to our respect for decent hierarchical institutions such as the Catholic Church, but membership in the latter is voluntary and does not comprehensively determine public rights and duties, a point he himself makes elsewhere in explaining why consensual patriarchal families must respect equal rights of citizenship. Rawls defends decent hierarchical societies on the grounds that they count as genuinely voluntary cooperative associations that merit equal respect (1999, p. 84). But are they? Buchanan (2006) and Habermas (2001, p. 125) question whether societies that equate public accountability with responsiveness to dissent without permitting a full and equal freedom of speech and association (as specified in Articles 18–20 of the UDHR) even qualify as voluntary associations. Indeed, Habermas goes so far as to insist that valid consent is only possible in liberal democracies, in which in theory, if not in practice, consent is presumed to meet high thresholds of rationality and reasonableness, pursuant to demanding expectations regarding publicity, openness and inclusion, equal freedom to question accepted opinion and propose alternatives – preferably unconstrained by social and legal power. According to Habermas, free and rational consent follows from internal critical reflection on fundamental values and interests that has been provoked and informed by public argumentation, argumentation whose standards of rational conviction presuppose an orientation to reaching agreement, 10

In this connection, see Habermas’s earlier objection to Rawls’s political liberalism (Habermas 1995, 1998), and Rawls’s reply to Habernas (1995).

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compelled only by mutually convincing (i.e. shareable) reasons. Using this demanding ideal of rational consent, Habermas challenges the less demanding model of consent implicit in Rawls’s contractarian approach (Habermas 1998b). He charges that the bare fact of an overlapping consensus, in which different parties agree to norms for different (and possibly incommensurable) reasons, begs the deeper question about whether this consensus is fully rational. Rawls’s counter – that if only one of several incommensurable rationales supporting an overlapping consensus is true, the consensus in question is valid – doesn’t meet Habermas’s objection, because it provides no independent reason for believing that at least one of the overlapping rationales is true. Rawls never submits his law of peoples to critical discussion involving competing principles (as Pogge 2006 notes). Indeed, when he addresses the difficult question whether strands of Islamic social and legal thinking might be compatible with liberal and Western democratic ideals, he leaves the question open, which suggests that his default presumption of the reasonableness of extreme value pluralism may be premature (Rawls 1999, pp. 110n39, 151n46). Equally premature is his intention to “leave aside the many difficulties in interpreting . . . rights and limits, and take their general meaning and tendency clear enough” (1999, p. 27). That the “general meaning and tendency” of human rights is not clear enough is evidenced by the United States and the forty signatory countries to the 1993 Bangkok Declaration disagreeing rather vehemently over whether social, cultural, and economic rights are human rights at all, and, if so, whether they trump civil and political rights.11 In sum, the contractarian political approach Rawls deploys in rejecting the liberal democratic interpretation of human to human rights contained in the UDHR arguably exaggerates the degree of global value pluralism between peoples. Furthermore, there is no reason to think that an overlapping consensus between peoples is stable for the right reasons. Finally, if voluntary cooperation depends on strong notions of reciprocity in which the terms of the social contract are presumed to respect the equal dignity of each and every individual – a condition dependent on individual rational consent to, or absence of dissent from, these terms – then Rawls must exclude any reference to the equal dignity of persons as a reason why decent hierarchical peoples respect human rights. Decent peoples must guarantee individuals equal 11

See note 2. For a critique of Rawls’s insensitivity to the colonial legacy and his inability to respond to the post-colonial aftermath by taking seriously a multicultural dialogue on human rights, see Flynn (2014).

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protection under the law and must treat like cases alike, but they need not regard individuals as having equal rights to plan their lives as they see fit, based solely on their inherent dignity. 5.3.2 Habermas: Human Rights within Constitutional Law Habermas interprets the contractarian approach to human rights less ecumenically than does Rawls, defending a model of rational consent that presupposes liberal democratic institutions. In this respect Rainer Forst,12 Seyla Benhabib,13 K.O. Apel,14 and many others who follow in Habermas’s 12

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Forst grounds human rights in a universal moral right to justification that defines valid norms in terms of a principle of non-dissent: Only those norms are justified to which no affected individual could reasonably dissent. Applying this discourse theoretic principle recursively in light of social facts about typical historical violations of human dignity allows us to construct a basic set of abstract (unsaturated) rights principles. In order for human rights to be fully realized and defined, this stage of moral constructivism must be followed by a stage of political constructivism in which peoples democratically apply (interpret, or legislate) these principles in the form of concrete prescriptive rights in a manner that is sensitive to their unique historical and cultural context. Following Rawls’s mature understanding of his stagesequential theory of justice, Forst insists that because moral constructivism draws upon pertinent facts about human capabilities, moral psychology and the like, it can yield universal human rights norms that are both procedural and substantive, imposing positive duties to provide the economic, social, cultural, and political means for their exercise. In this respect moral constructivism differs from classical natural law theory in drawing its core content from both historical facts and abstract norms, while leaving the more precise determination of human rights to democratic legislation. (Despite its rejection of natural law theory, Forst’s theory here evinces the “mirroring view” justly criticized by Buchanan.) Although Habermas accepts a genetic link between the moral concept of human dignity and the legal concept of human rights (see below), he denies that human rights are grounded in a common moral foundation of the sort proposed by Forst (Habermas 2011, pp. 296–98). Like Forst (see note 12) and Habermas, Benhabib (2013) defends a reflexive, two-stage approach to mediating (or reconciling) cosmopolitan humanitarian law and locally bounded democratic self-determination. Invoking Hannah Arendt’s claim that human rights are “[moral] rights to have [legal] rights, Benhabib derives human rights from a discursive principle of communicative freedom, which recognizes the equal dignity of each person. This general moral right to equal status within a legally secured polity is encapsulated in international humanitarian law in general terms only. The legitimate political actualization of this universal strand of legal normativity in the legal form of concretely prescriptive, contextually sensitive legal rights must await a “democratic iteration” at the level of a bounded polity. Although she endorses a conceptual link between a moral discourse principle and a concept of human rights, it is less clear whether she endorses a conceptual link between the concept of human rights and democracy in the way that Habermas does. Also unclear is whether she agrees with Forst’s view that the substantive content of moral human rights can be discursively specified prior to being reflexively constructed at the legal and political stage. Apel can be credited with having co-pioneered the concept of discourse ethics. He alone among those who ground human rights in discourse theory insists on interpreting this derivation as an a priori (viz., transcendental) moral justification, (Apel 2002; Ingram 2010, p. 167).

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footsteps agree, however much they differ on other points.15 Habermas’s discourse theoretic qualification of the social contractarian approach also goes beyond its Rawlsian counterpart in defending a conceptual link between human rights and the equal dignity of the individual person. However, in some ways this congenial compatibility with the UDHR is purchased at the expense of abandoning the equal importance of a human right to subsistence, a feature of the UDHR which Rawls accepts without qualification. Habermas’s theory of rights has undergone a number of changes over the past thirty-five years. Although his earlier efforts derived constitutional rights from morality (Habermas 1988), his most recent and definitive effort bears a positivist inclination. As he puts it: “Human rights are juridical by their very nature, what lends them the appearance of moral rights is not their content, and most especially not their structure, but rather their mode of validation, which points beyond the legal systems of nation states” (Habermas 1998a; Ingram 2014b). In Between Facts and Norms (Habermas 1996), Habermas deduces human rights from the classical civil and political liberties informing Western constitutional law. Such rights are not moral rights; they do not follow from prior moral duties. Instead they follow from two axioms: the abstract form of modern law (the principle of subjective, or private, right), which permits legal subjects to pursue their aims without interference from others and without having to justify them to others; and the principle of discourse (D), which asserts that “just those action norms are valid to which all possibly affected persons could agree as participants in rational discourse” (1996, p. 107).16 15

16

Forst, Apel, and Benhabib derive human rights from principles of discourse that, unlike Habermas’s own principle of discourse D, are put forward as moral principles. In general, I find any monistic derivation of human rights from principles of communication, justification, or discourse problematic. With Buchanan, I hold that the content of legal human rights is justified relative to the plural aims they serve (Buchanan, 312). Moral human rights are grounded in human interests basic to living a worthwhile life either directly or indirectly. The right not to be tortured requires just as little justification as the perceptual fact that the ball before me is red. By contrast, the right to life in its more concrete legal specification – but not in its general moral perception – does require discursive justification, simply because of the many conventional exceptions that attach to its application. Consequently, the principle of human rights is conceptually linked to the principle of justice only in the specific juridical sense associated with (the human right to) equal protection under the law. Institutions securing distributive, democratic, and discursive justice are indeed instrumental to the equal exercise of legal human rights and so their moral grounds provide additional moral justification for these rights, quite apart from justifying or realizing moral human rights. Forst’s monism of morality and law, Habermas argues, neglects the essentially juridical form of human rights as specifying “subjective rights,” or permissions to act without need of justification that can be enforced against government and non-government agents. Moral rights, by contrast, derive directly from moral duties, so that, properly speaking, the moral right to

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The intersection of D, which is not to be confused with a principle of moral universalization, and the legal form yields the simple idea that legal subjects should have equal rights. The next important move in this deduction, once we derive equal permissive rights, equal rights to membership in a legal order, and equal rights to legal procedures for processing legal claims, is the derivation of democratic political rights. These rights follow from a second application of D to the procedure of lawmaking, which explains the voluntary, binding authority (or legitimacy) of laws: we are obligated to obey only those coercive laws which we ourselves have contributed in democratically legislating. Thus, in the words of Habermas, there exists “an internal relationship between human rights and popular sovereignty” (1996, p. 123). The bi-conditional relationship between human rights and democracy leads, finally, to a third application of D, the actual democratic legislation of a democratic constitution in an ideally representative constitutional assembly. Habermas’s insistence on a conceptual link between democracy and human rights seems both historically and logically mistaken. Constitutional rights to property, freedom of conscience, freedom of speech, and the like predated the birth of democratic constitutions in the late eighteenth century. Furthermore, only some of these classical rights are really necessary for democracy, understood as an institutionalization of inclusive discursive deliberation (one needn’t have a right to property in order to freely deliberate about the scope of one’s right to practice one’s religion, say). In response to these objections, Habermas insists that his bi-conditionality thesis does not assert an existential but only a normative link between human rights and democracy, and that some classical rights (to personal freedom, for instance) have a basis in the “grammar of the legal code” rather than in democracy or norms of discourse (Habermas 2001, pp. 117–18). But the human right to subsistence and other positive social rights do not seem to have a basis in either the positive right to democratic participation or the modern legal form, which structures rights as permissive negative liberties. In fact Habermas adduces a fifth category of social rights that function to

justification follows from a prior moral duty to justify one’s actions to others (Habermas 2011, pp. 296–298). By conceiving human rights as permissive rights, Habermas commits himself to interpreting human rights violations as violations of reciprocal negative duties to desist from causing harm, specifically by interfering with the freedom of others. Although this interpretation can be used to indict global economic institutions for having denied poor people of their rightful access to the world’s resources (see Pogge 2008), it does not explain a government’s positive duty to secure their social, economic, and cultural human rights. Forst’s monistic view does, despite its apparent endorsement of the “mirroring view” justly criticized by Buchanan.

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secure the all-purpose means to realizing the former rights. These include “basic rights to the provision of living conditions that are socially, technologically, and ecologically safeguarded” (1996, p. 123). However, by asserting that the first four categories of basic rights are “absolutely justifiable” while the fifth category “can be justified only in relative terms,” Habermas consigns social rights to a status below that of basic (i.e. relatively absolute and unconditional) human rights. The first three categories of equal rights are essential to the very concept of a modern legal code, the fourth category of democratic rights is essential to the concept of legitimacy. By contrast, the fifth category of social rights serves to guarantee the “fair value” of civil and political rights” (as Rawls puts it). Habermas invokes this phrase against the signatories to the Bangkok Declaration (1993) who seek to reverse the priority of civil and political rights over social, economic, and cultural rights (Habermas 2001, p. 125). Because the latter rights are instrumental toward realizing civil and political rights, they cannot trump these rights. The priority of civil and political rights over social rights is retained in Habermas’s view that international law must develop itself along a constitutional path. Habermas here recommends that distinct categories of injustice be dealt with by different legal regimes, with the UN policing human rights violations as agent-caused crimes and transnational organizations negotiating terms of global distributive justice. This priority is reinforced by Habermas’s claim that “liberal (in the narrower sense) basic rights make up the core of human rights” and so acquire the additional meaning of “liberal rights against the state” (Habermas 1996, p. 174). In sum, leaving aside the general merits of Habermas’s constitutional approach to human rights, his particular derivation of human rights cannot acknowledge the equal status of social rights. In this respect, Rawls’s denial that human rights are constitutional rights (narrowly construed) seems correct. A right to subsistence plays no necessary role in constituting liberal democratic rights.17

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The narrowness of Habermas’s constitutional approach contrasts sharply with his objection to neoliberalism’s restriction of human rights to the negative liberties of citizens who acquire an “immediate status vis-a`-vis the global economy” (2006, p. 186) and his strong endorsement of Germany’s constitutional entrenchment of social rights. Habermas’s instrumental understanding of social rights tracks Buchanan’s, except for the latter’s insistence that civil and political rights possess no greater weight than social rights in securing the equal exercise of human rights (see note 7). This problematic feature of Habermas’s constitutional derivation of human rights does not diminish the considerable merits of his proposal for a constitutionalization of human rights (including social rights), as my own discussion of constitutional human rights review (Ingram 2014a) attests.

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One might go farther and argue that juridifying human rights is not always essential for their effective implementation (Pogge 2008, pp. 68–69).18 This is necessarily true if human rights designate only moral standards for assessing society’s success in progressively safeguarding the basic dignity of its members. However, we shall see that the moral conception of human rights plays a rather essential role in establishing, if not grounding constitutional and humanitarian law. 5.4 PART III: MORAL APPROACHES TO HUMAN RIGHTS

In a recent essay, “The Concept of Human Dignity and the Realistic Utopia of Human Rights” (2010), Habermas clarifies his juridical approach to human rights by acknowledging the “moral-legal Janus face of human rights through the mediating role of the concept of human dignity” (Habermas 2010, p. 464). I did not originally take into account two things. First, the cumulative experiences of violated dignity constitute a source of moral motivations for entering into historically unprecedented constitution-making practices that arose at the end of the eighteenth century. Second, the status-generating notion of social recognition of the dignity of others provides a conceptual bridge between the moral idea of the equal respect for all and the legal form of human rights (2010, 470n10)

Whatever else might be said about the legal and political reasons underwriting human rights declarations regarding education, healthcare, welfare, and other institutional goods,19 protecting against the violation of persons’ human dignity is essentially the moral aim of those constitutional rights that it is the business of courts to adjudicate. Indeed, it is recognition of this moral status that motivated constitutional rights in the first place. Once dignity – a status that originally grounded the nobleman’s claim to preferential 18

19

Some of the goods morally required to satisfy an acceptable level of human flourishing need not (and in some instances, should not) be legally mandated. As Martha Nussbaum notes (Nussbaum 2000, p. 295), patriarchal customs, which regulate familial relationships that are otherwise legally constituted, cannot be outlawed without violating consensual rights to familial privacy, even though such customs effectively deny women secure access to education, subsistence, and other goods to which they have legitimate human rights claims The appropriate remedy to such human rights violations is therefore not legal (or exclusively legal) but pedagogical. Because human rights are generally formulated at a high level of abstraction, they leave open the types of remedies that can bring communities into compliance with them. See my discussion of Buchanan (2013) in note 7, where I qualifiedly endorse his understanding of the plural grounds underlying different types of human rights.

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treatment – became a universal moral status attached to humanity, it opened the “portal” through which moral duties to respect the equal humanity of each individual entered the legal domain of claim rights.20 This is not the only mediating function the concept of dignity performs: The heuristic function of human dignity is the key to the logical interconnectedness between [civil, economic, social, and cultural] categories of rights . . . Human dignity grounds [their] indivisibility . . . Only in collaboration with each other can basic rights fulfill the moral promise to respect the equal dignity of every person equally (2010, pp. 468–9)

Affirming the equal status of all categories of human rights pursuant to the Vienna Declaration (1993) corrects a defect in Habermas’s earlier constitutional approach, but his appeal to human dignity as the sole (moral) ground for liberal democratic rights seems premature (see note 7). Invoking Kant, Habermas argues that the “infinite dignity” of the individual resides in the “inviolability of [his] domain of free will” (2010, p. 474) as determined by the “self-respect and social recognition from a status in space and time – that of democratic citizenship” (p. 479). Linking dignity to liberal democratic citizenship is questionable for another reason as well: it selects a subset of vital moral capacities that young children and persons with severe mental disabilities lack. In fact, James Griffin’s grounding of human rights in a similarly narrow notion of normative agency leads him to question whether young children and mentally disabled persons should possess human rights at all. But Griffin draws another implication from this grounding strategy that speaks to its limitations. As he notes, possessing human dignity and living a “minimally worthwhile life” do not directly entail democratic citizenship unless we factor in a second ground for human rights: human practicalities. In this, as in much of Griffin’s pluralistic account of human rights constrained by human practicalities, there is much to recommend, including (pace Habermas) his denial that human rights always trump other worthwhile ends (Griffin, 20; see note 6 and 7). However, whereas Habermas’s appeal to 20

Habermas traces the modern concept of dignity from the stoics’ supreme elevation of digintas humana in the cosmic order, to Christianity’s proclamation of the equal dignity of each individual made in the image of God, and finally to modern secular morality’s demand that each be treated with equal respect, now translated into the legal idiom of a personal claim (right) (2010, pp. 475–6). That this moral genealogy motivated the authors of the UDHR, ICCPR, and ICESCR to characterize human rights as rights that all persons are “born with,” is evidence that they endorsed the “mirroring view" (see note 7), however much at odds that view might be with the best interpretation of many human rights norms (Buchanan 2013, p. 20).

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human dignity as an inventive source for human rights that grows out of and unifies the “plethora of human experiences of what it means to get humiliated and be deeply hurt” (Habermas 1996, pp. 467–8) runs the risk of inflating the content of humanitarian law, Griffin’s insistence that human rights be narrowly tailored to protecting individual agency runs the opposite risk of truncating that same content.21 A strategy that promises to avoid the extremes of inflation and truncation involves settling on a range of important human capabilities, not restricted to human dignity or normative agency narrowly construed,22 that human rights are supposed to protect. According to this pluralistic approach,23 a particular human right might protect some capabilities but not others. Supposing that consciousness is one of the important capabilities in virtue of which human 21

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Griffin criticizes as either superfluous or excessive human rights language in the UDHR and other official human rights documents that cannot be grounded in human normative agency and practicalities. For example, he reasonably notes (2008, p. 99) that our strong interest in achieving (as the ICESCR puts it) the “maximal attainable health” possible cannot ground a corresponding human right to maximal health. Elsewhere, this “mirroring view” critique (see note 7) displays a problematic side, as when Griffin (2008, pp. 5, 207–09) criticizes as inflationary the right to work and the right to “periodic holidays with pay” (UDHR A. 23–24). As Buchanan notes, such institutional legal human rights as these might be justified as advancing other social ends (the creation of a welfare state) that are instrumental to the exercise of human rights (Buchanan 2013, p. 18). Amartya Sen (1999) and Nussbaum (2000) have pioneered the capabilities approach to human rights as an alternative to Rawls’s primary goods approach. Nussbaum provisionally lists about ten capabilities (paraphrasing, these are life, bodily health, cognition, emotion, practical reason, social affiliation, concern for other living things, play, and control over one’s environment). Human rights are claims (and aspirations) grounded in innate capability potentials possessed by infants and children (basic capabilities), naturally developed capabilities of mature persons (internal capabilities), and in internal capabilities whose development and exercise is advanced or hindered by external circumstances (combined capabilities). While innate capabilities ground the “worth and dignity of basic human powers” sufficient to justify human rights to life and bodily integrity, internal and combined capabilities ground higher levels of human functioning whose neglected development suffices to establish a statecondoned human rights deficit (2000, pp. 78–86). Whether these latter capabilities are sufficient to justify the full range of human rights in the absence of other practicalities is doubtful (as I indicate in note 23). “Pluralism” in this context refers solely to the plural capabilities and statuses that adhere in personhood and underwrite different human rights. Besides personhood, Griffin (2008, p. 37) discusses another ground explaining human rights: human practicalities, viz., limits of social and legal association, human motivation, and so on. If justice forms a part of the conditions of social and legal association, then equality and democracy must be additional factors explaining, respectively, the status of human rights claimants and the legitimacy of humanitarian law. Beyond these grounds, there are, as Buchanan notes (see note 7) social and political reasons supporting human rights to specific types of institutional provision that cannot be justified solely in terms of protecting individuals’ capabilities and statuses. Finally, “human rights pluralism” can be extended to include the multiple ends (political and non-political) human rights serve in many different contexts and institutions. See Nickel (2006) and note 3.

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life acquires dignity, young children, profoundly mentally disabled adults, and possibly non-human beings (Gilabert 2015)24 would possess some important moral and legal human rights. Following accepted human rights doctrine and practice recommends being theoretically open-minded about the meaning and extension of the concept of dignity, whether we understand this concept to refer back to normative agency, human capability, or historical experience of diminution, marginalization, cruelty, and insult. Beyond these general features of personhood, and apart from the circumstantial practicalities associated with the just and legitimate legal protection of personhood, dignity grounds the egalitarian status of human rights holders. However, because defining dignity is a fraught enterprise, its place in humanitarian law instigates rather than mitigates tendencies toward rights truncation or (what is historically the case) rights inflation. Mitigating these tendencies within the current legal framework will remain a difficult but necessary task.25 5.5 PART IV: UNDERSTANDING HUMAN RIGHTS CONTEXTUALLY – PLURALISM RECONSIDERED

I began this essay by arguing that the apparent incoherence of the UDHR regarding the moral, political, and legal status of human rights justifies theoretical reconstruction and clarification. Such clarification, however, must be sensitive to the multiple functions and justificatory grounds of human rights. Political and legal theories regarding the function of human rights in international (or constitutional) law should not be condemned for extruding contentious moral premises from their purview, especially insofar as their aim is to secure peaceful cohabitation and social cooperation. However, they should be wary of prematurely dismissing the ecumenical moral content of human rights documents out of hypersensitivity to ethnocentrism or rights 24

25

In an unprecedented case initiated by the Nonhuman Rights Project and supported by the Center for Constitutional Rights in an amicus curiae letter brief, the New York Supreme Court in April 2015 held that four chimpanzees kept for research at Stony Brook University were legal persons (albeit not bearers of human rights) that had a right not to be held in captivity and a right not to be owned. On July 30 Judge Barbara Jaffe reversed her preliminary ruling that would have granted habeas corpus relief, citing conflicts with legal precedent. Buchanan (2013, pp. 286–92) mentions seven ways this might be done, emphasizing three especially promising options: introducing institutional filters for proposed treaties, distinguishing rights from administrative directives for their realization, and allowing human rights courts to refuse to hear cases. Notably less promising are: current strategies that encourage states to include reservations and understandings in treaties; and the proposal to restrain expansive judicial interpretation of human rights.

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inflationism. Indeed, adjudicating human rights claims in courts of law or even determining when sanctions and military interventions are needed to protect against gross human rights violations might require appealing to this very content.26 The case for doing so becomes even stronger as the current humanitarian legal order evolves from a state-centered system of duties to a system that imposes duties on GEMs, TNCs, and all agents that contribute to human rights deficits originating in the global economic structure as a whole. For their part moral theories about human rights will be irrelevant to the degree that they do not consider legal practice. This becomes apparent once we recall the limits attached to the concept of human dignity. Grounding human rights exclusively on this contested concept runs the risk of excessively narrowing (or broadening) the range of institutional legal human rights relative to the possession (or exercise) of philosophically favored agential capabilities. By contrast, the much scorned concept of human dignity to which the authors of the UDHR appealed in fashioning a workable, nonbinding and all-inclusive compromise also functioned as an historical cipher of personal indignities whose remedy, they realized, required legal social reform. Such indignities imply something morally basic about what makes any human life equally valuable. They designate a status on behalf of which moral claims can be asserted demanding equal legal protection and promotion of each individual’s vital interests. Vital human interests and human practicalities combine to explain the different moral grounds underwriting distinct categories of human rights. Moral psychology coupled with knowledge about just and efficient social organization guides our understanding of the institutional means requisite for satisfying these interests. Such means need not assume the form of legal human rights, but if they do their justification will likely extend beyond protecting individual agency to include provision of education, welfare, medical care, security, political association, and other public goods (Buchanan 2013). This explains how human rights function as moral aspirations for institutional reform. However, given that social policies do not have to be legally formulated as human rights (see note 7), we still need to understand the special role that human rights play as justiciable claims in courts of law. Only by being incorporated into a body of case (or constitutional/statutory) law can human rights achieve a practically effective degree of prescriptive

26

See notes 6 and 7.

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determinacy27 that once again brings into play the vital moral interests of the individual.28 Thomas Pogge explains two ways in which this might be done. According to the interactional model, human rights are claims against a discrete individual who wields official or unofficial police and administrative power over the rights claimant. Here, failure to respect the claimant’s right entails a straightforward human rights violation, typically involving the commission of a serious humanitarian crime on a massive scale (such as genocide) which issues in criminal prosecution conducted under the auspices of a national or international criminal court. The second, institutional model of human rights responds to a weakness in the first model, namely a failure to conceptualize non-criminal but foreseeably negligent human rights infractions caused by the normal, legal functioning of domestic or international institutions.29 Pogge has in mind international trade agreements, lending practices, and resource extraction privileges that prevent 27

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I defend transforming juridical human rights into justiciable (determinate and prescriptive) human rights in Ingram (2003). However, as Johan Karlsson Schaffer argues in this volume, the use of courts to air human rights complaints is sometimes intended to raise non-justiciable human rights claims with the intent to publicize a cause, exercise political leverage, and reshape public opinion. Seven of the nine core international human rights treaties have instituted individual complaint mechanisms for addressing the failures of states to adhere to the three pillars of human rights responsibilities (to respect, protect, and promote human rights); The Optional Protocol of the ICESCR (in force since May 2013) specifically allows the UN Committee on Economic, Social, and Cultural Rights to hear complaints from individuals or groups who claim their rights under the ICESCR have been violated and it also allows the Committee to investigate, report upon and make recommendations regarding “grave or systematic violations” of the Convention (Lafont 2014, p. 9). Less formal complaint mechanisms have been adopted by states to protest rights-infringing policies of GEMs. After the UN committee exercising oversight of the ICESCR issued a statement in December 2001 asserting that global agreements on trade and property rights (such as TRIPS) could not conflict with states’ human rights obligations – including the duty not to adopt “retrogressive measures” – the WTO ratified a declaration, put forth by twenty developing nations, that affirmed “the WTO members’ right to protect public health and, in particular, to promote access to medicines for all” (WTO, Doha Declaration on the TRIPS Agreement and Public Health). To be sure, neither the WTO nor the IMF/WB has entrenched international human rights law in their operational mechanisms. The Special Rapporteurs commissioned by the HRC and OHCHR have proposed operational human rights standards that could be applicable to both GEMs and TNCs in line with John Ruggie’s 2009 Report to the HRC. This report enjoins TNCs to exercise “human rights due diligence” by (a) adopting a human rights policy, (b) undertaking and acting upon a human rights impact assessment, (c) integrating human rights policy throughout all company divisions and functions, and (d) tracking human rights performance to ensure continuous improvement” (see “Report to the Human Rights Council of the Special Representative of the Secretary General On the Issue of Human Rights and Transnational Corporations and Other Business Enterprises” adopted by the HRC on July 2011 and the more recent “United Nations Guiding Principles on Business and Human Rights” [2013]. Both documents are discussed by Lafont 2014, p. 16). Currently, TNCs

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the poor from gaining secure access to their fair share of the world’s resources, including potable water, uncontaminated land, adequate food and shelter, etc. According to this model, a failure to respect the claimant’s right entails a human rights deficit, whose severity is proportional to the number of those (discriminately) harmed as well as to the foreseeability of the harm inflicted. Both models for understanding how human rights are justiciable bring into play the vital interests of specific individuals. However, in cases where plaintiffs seek to enjoin harmful institutional conduct judges are often required to balance the harm done to an individual’s vital interests (protection of which is guaranteed by human right) against competing rights and legitimate institutional needs. Human rights are not unconditional – they do sometimes conflict with each other and with other important institutional values. But the dignity accorded individual persons should endow their human rights claims with presumptive priority in comparison to not only the human rights of corporate persons30 and groups but also the rights of sovereign states, especially insofar as these rights have been reinterpreted to align with the R2P principle. Let me conclude by briefly noting the relevance of discourse theory to what I have said above. The juridical construction of human rights law through official declaration, binding treaty, or judicial interpretation raises concerns about that law’s legitimacy. The law succeeds in coordinating interaction legitimately to the extent that those affected by it converge in believing that the benefits of coercion outweigh the costs, viz., that the law functions in a reasonably just and efficient manner in procuring a generally desired social good. This general standard of legitimacy comports with different criteria of legitimacy depending on institutional context (Buchanan 2013, 178–96). Within the context of constitutional law the moral idea of equal human dignity finds expression in the idea that each should enjoy equal protection under the law in such a way that securing that protection requires holding those who make the law accountable for the content of that law. Therefore, in

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can only be held accountable for human rights violations that count as international crimes as defined by the Rome Statute of the ICC. TNCs domiciled in Europe can be sued for civil human rights violations only in European Courts. The sole country that has provided recourse to plaintiffs who wish to seek extraterritorial relief is the United States. Recently the Seventh, Ninth, Eleventh, and DC Circuit Courts have upheld corporate liability under the Alien Tort Statute (1789), which allows aliens to file civil suit against TNCs for violations of the customary “law of nations” or a treaty entered into by the US government. However, the 2013 US Supreme Court’s dismissal of the Kiobel case, involving a suit brought by twelve plaintiffs against Royal Dutch Shell alleging collusion with the Nigerian government’s sponsorship of torture and murder, held that the ATS does not provide relief for extraterritorial civil harms. Article 34 of the European Convention of Human Rights recognizes applications put forth by “any person, non-governmental organization or group of individuals.”

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this context a prima facie moral argument can be made for democracy. Because judges who serve on constitutional courts where basic rights are adjudicated are not elected, a question arises how proceedings at this level can be made democratically accountable. I have argued elsewhere (Ingram 2014a, 2014b) that this legitimation problem can be theoretically and practically mitigated. But does a similar problem of democratic legitimacy arise at the level of international law? Should procedures for making and applying humanitarian law be subject to the same criteria of democratic legitimacy that apply to the constitutional state? There are plausible reasons for thinking not. An “ecological” account of legitimacy of the sort proposed by Buchanan appeals instead to a symbiotic division of labor whereby states and international organizations derive their legitimacy from each other: the international humanitarian regime outsources functions of legislating, adjudicating, and enforcing human rights to states (most of them constitutional democracies), whose own legitimacy (and the legitimacy of the international state system) in turn depends on submission to human rights law. So understood “the lack of representative legislative institutions and a developed, independent judiciary operating within a context of constitutional constraints on legislation” at the international level does not imply a legitimacy/democracy deficit (Buchanan 2013, p. 316). As Buchanan rightly remarks, this justification of the international order’s legitimacy does not eliminate the tension between constitutional and international law, especially insofar as the latter requires constitutional incorporation of treaties imposing robust welfare duties and sometimes even changes in constitutional law itself. When treaties change the character of the polity by altering constitutional terms of collective self-determination, they must be incorporated through some form of “robust democratic authorization” (Buchanan 2013, p. 48). This qualification, and Buchanan’s own concern that dependence of humanitarian law on voluntarily assumed treaty obligations weakens the universal scope of human rights, recommends that we consider a more centralized institutionalization of that law in which criteria of democratic legitimacy apply. If, for instance, a supermajority of ratifying states is legally empowered to unilaterally impose a treaty on all nations (Buchanan’s recommendation, 2013, p. 27), then problems of majoritarian tyranny arise that require constitutional solutions – at the international level. I cannot here address the long-term project of constitutionalizing international law that Habermas and others have pursued to deal with the issues raised by Buchanan (including the weakness of treaty law in dealing with

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global economic injustices that impact the exercise of human rights). Suffice it to say, the problem noted above regarding the democratic legitimation of constitutional review resurfaces at this level. Without going into detail regarding the solution to this problem,31 it is clear that the appointment of large, representative panels of judges who are publicly accountable to one another and to global public opinion marks an important step toward realizing discourse theoretic values at this elite level of technical-ethical theorizing (Ingram 2014a). But the heart of a discourse theory of law remains political democracy. Few would dispute that the modern, liberal idea of democracy presupposes the constitutional entrenchment of some human rights, most notably those that protect individuals’ freedom of (political) association and freedom of (political) speech. Less clear is whether human rights presuppose democracy. Must there be included among the many human rights that are universally recognized by all peoples a human right to participate as an equal in the periodic election of lawmakers and executive officers and, if so, why? Rawls’s worry about the apparent ethnocentrism of this legacy of Western individualism underestimates how widespread personal indignation to global threats posed by modern administrative apparatuses and market economies has become. But although democracy might be the best (and only) empirically effective remedy to these threats, there does not appear to be any conceptual necessity for its being the sole institutional form that a legitimate human rights regime must assume. There is no logical connection between freely deciding upon and carrying out a worthwhile plan of life– which I take to be the central (if not exhaustive) unifying idea underlying the capabilities and interests earmarked for protection by human rights – and casting an equally weighted (albeit insignificantly influential) ballot in electing government officials. Even under the best of circumstances, democratic majoritarian government can threaten individual interests. Furthermore, combining the moral idea of equal individual human dignity with practicalities does not justify the logical necessity of liberal democracy. Supposing that the Habermasian school is correct in its assumption that one of the relevant human practicalities that bears on the specification of human rights is a deep-seated (transcendentally unavoidable) connection between rational suasion and moral consent/dissent, it would seem to follow that the practical institutionalization of human rights – in some

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For a more detailed examination of the complexities involved in the democratic constitutionalization of international governance as it impacts the function of judicial review, see chapter six of D. Ingram, World Crisis and Underdevelopment: A Critical Theory of Poverty, Agency, and Coercion (Cambridge: Cambridge University Press, 2018).

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form of accountable government in which discourse ethical principles permitting individual dissent, unrestricted participation in the formation of public opinion, and freedom of political association are supported – is “conceptually” compelling. However, only by expanding our pool of reasons to include empirically contingent practicalities referring, for instance, to the superior historical track records of modern-day liberal democracies in protecting human rights can we make a fully compelling case for including among our universally recognized legally binding human rights a right to (liberal) democracy. So, a human right to democracy, like many other human rights, might be justified, apart from serving the vital moral interests of individuals, as the best means for procuring social justice and political peace – perhaps the most important factor conditioning the secure and stable enjoyment of all human rights. Indeed, how else should one understand the UDHR’s admonition (A.1) that “All human beings . . . should act towards one another in a spirit of brotherhood,” if not as a call to global democratic solidarity in assuming collective responsibility for progressively realizing the demanding moral aspirations for a minimally humane world?32 BIBLIOGRAPHY Apel, K. O. (2002) “Regarding the Relationship of Morality, Law, and Democracy: On Habermas’s Philosophy of Law from a Transcendental Pragmatic Point of View,” in Aboulafia, M., Bookman, M., and Kemp, C. (eds.), Habermas and Pragmatism, New York: Routledge, pp. 17–30. Baynes, K. (2009) “Discourse Ethics and the Political Conception of Human Rights,” Ethics and Global Policy, vol. 2 no. 1, pp. 1–21. Benhabib, S. (2013) “Reason-Giving and Rights-Bearing: Constructing the Subject of Rights,” Constellations, vol. 20 no. 1, pp. 38–51. Buchanan, A. (2013) The Heart of Human Rights, Oxford: Oxford University Press.

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While institutional authorities can be held liable in courts of law for (co-)authoring human rights violations and deficits, a global capitalist economy, whose growth dynamics disparately harm the vital interests of the poor, is in important respects authorless. This economic system arose not through treaty but through the unintended aggregate effects of billions of market transactions spanning over half a millennium. Although no person or institution is causally responsible for its creation, everyone contributes to its maintenance – from exploited sweatshop workers in the developing world to affluent consumers in the developed world. The fact that everyone is indirectly connected to everyone else through the global economy implies shared responsibility for its structural injustices. In the absence of shared liability, where juridical notions of agent causation no longer apply, shared responsibility can only be forwardlooking, oriented toward fostering grass-roots social movements that have as their aim democratic reform of global institutions.

5. Mediating the Theory & Practice of Human Rights in Morality & Law 123 (2006) “Taking the Human Out of Human Rights,” in Martin, R. and Reidy, D. A. (eds.), Rawls’s Law of Peoples: A Realistic Utopia?, Oxford: Blackwell Publishing Ltd, pp. 150–68. Cohen, Jean. (2004) “Whose Sovereignty? Empire versus International Law,” Ethics and International Affairs, vol. 18 no. 3, pp. 1–24. Cohen, Joshua.(2004) “Minimalism About Human Rights: The Most We Can Hope For?,” The Journal of Political Philosophy, vol. 12 no. 2, pp. 190–213. Finlayson, J. G. and Freyenhagen, F. (eds.) (2011) Habermas and Rawls: Disputing the Political, New York: Routledge. Flynn, J. (2014) Reframing the Intercultural Dialogue on Human Rights, New York: Routledge. Forst, R. (2011) “The Justification of Justice: Rawls and Habermas in Dialogue,” In Finlayson, J. G. and Freyenhagen, F. (eds.), Habermas and Rawls: Disputing the Political, pp. 153–180. (2012) The Right to Justification, New York: Columbia University Press. Gilabert, P. (2015) “Human Rights, Human Dignity, and Power,” In Cruft, R., Liao, M., and Renzo, M. (eds.), Philosophical Foundations of Human Rights. Oxford: Oxford University Press. pp. 196–213. Griffin, J. (2008). On Human Rights, Oxford: Oxford University Press. Habermas, J. (1988) “Law and Morality,” in McMurrin, S. M. (ed.), The Tanner Lectures on Human Values, vol. 8, Salt Lake City: University of Utah Press, pp. 217–279. (1995) “Reconciliation through the Public Use of Reason: Remarks on John Rawls’s Political Liberalism,” Journal of Philosophy, vol. 92 no. 3, pp. 109–131. (2001) The Postnational Constellation: Political Essays, Cambridge, MA: MIT Press. (1996) Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge, MA: MIT Press. (1998a) The Inclusion of the Other: Studies in Political Theory, Cambridge, Mass: MIT Press. (1998b) “Reasonable versus True, or, the Morality of Worldviews,” in Finlayson, J. G. and Freyenhagen, F. (eds.), Habermas and Rawls: Disputing the Political, pp. 75–101. (2006) The Divided West, London: Polity Press. (2010) “The Concept of Human Dignity and the Realistic Utopia of Human Rights,” Metaphilosophy, vol. 41 no. 1, pp. 464–480. (2011) “A Reply to My Critics,” In Finlayson, J. G. and Freyenhagen, F. (eds.), Habermas and Rawls: Disputing the Political, pp. 283–304. Hedrick, T. (2010) Rawls and Habermas: Reason, Pluralism, and the Claims of Political Philosophy, Palo Alto: Stanford University Press. Ingram, D. (2003) “Between Political Liberalism and Postnational Cosmopolitanism: Toward an Alternative Theory of Human Rights,” Political Theory, vol. 31 no. 3, pp. 259–291. (2010) Habermas: Introduction and Analysis, Ithaca: Cornell University. (2014a) “Pluralizing Constitutional Review in International Law: A Critical Theory Approach,” Revista Portuguesa de Filosofia, special issue: Law and Philosophy: Foundations and Hermeneutics, vol. 70 no. 2–3, pp. 261–286.

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(2014b) “Reconciling Positivism and Realism: Kelsen and Habermas on Democracy and Human Rights,” Philosophy and Social Criticism, vol. 40 no. 3, pp. 237–267. Lafont, C. (2014) Human Rights, Sovereignty, and the Right to Protect. Critical Theory in Critical Times, New York: Columbia. Letsas, G. (2014) “Review of Allen Buchanan’s The Heart of Human Rights,” Notre Dame Philosophical Reviews [Electronic Journal], May 5th 2014. Macleod, A. (2006) “Rawls’s Narrow Doctrine of Human Rights,” in Martin, R. and Reidy, D. A. (eds.), Rawls’s Law of Peoples: A Realistic Utopia?, Oxford: Blackwell Publishing Ltd, pp. 134–149. Martin, R. and Reidy, D. A. (eds.) (2006) Rawls’s Law of Peoples: A Realistic Utopia?, Oxford: Blackwell Publishers. Nickel, J, (2006) “Are Human Rights Mainly Implemented by Intervention?,” in Martin, R. and Reidy, D. A. (eds.), Rawls’s Law of Peoples: A Realistic Utopia?, Oxford: Blackwell Publishing Ltd, pp. 263–77. Nussbaum, M. (2000) Women and Human Development, Cambridge: Cambridge University Press. Pogge, T. (2006) “Do Rawls’s Two Theories of Justice Fit Together?,” in Martin, R. and Reidy, D. A. (eds.), Rawls’s Law of Peoples: A Realistic Utopia?, Oxford: Blackwell Publishing Ltd, pp. 206–225. (2008) World Poverty and Human Rights, 2nd Edition, London: Polity Press. Rawls, J. (1993a) Political Liberalism, New York: Columbia University Press. (1993b) “Political Liberalism: Reply to Habermas,” Journal of Philosophy, vol. 92 no. 3, pp. 132–80. (1999) The Law of Peoples, Cambridge, MA: Harvard University Press. Sen, A. (1999) Development as Freedom, Oxford: Oxford University Press.

6 Kantian Human Rights or How the Individual Has Come to Matter in International Law Howard Williams

[I]t is the student of natural right who has to supply the immutable principles on which all positive legislation must rest. (Kant’s Political Writings, 132)

6.1 INTRODUCTION

The contributions to this volume are set in the context of the contrast between the political and moral approaches to the study of human rights that has emerged in the literature in recent years. This contrast represents a very valuable teaching device which helps highlight some of the main issues that are raised in the philosophical treatment of human rights. Although the conception of human rights has only arisen and been a focus of debate for the last half century or so, the idea of rights – and our capacity to merit and enjoy rights – has been around for a good deal longer. The moral (or naturalistic) notion of human rights is more readily associated with this earlier, long-standing debate, since the moral notion relies on general concepts of the worth of the human individual and draws more readily on universalistic accounts of what it is to be human and what treatment we should merit from our fellow human beings (Griffin 2008). Arguably, the political account of human rights owes its more recent emergence to the distinction John Rawls seeks to make between comprehensive notions of justice and his own more narrowly defined “political” conception of justice (Rawls 1999). Those who present human rights in this way as a “political” conception seek to present the conception as one which derives from a present-day context of advanced political relations among individuals and states where there is a growing awareness of the interdependence of political and social orders and so a greater need to pay heed to our common rights (Beitz 2009). At the same 125

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time, those who advance the political conception of human rights are mindful of the need to make the present-day human rights regime as effective as possible, and believe that the less that a conception of human rights is tied to a universalistic moral argument the more hold it may have on the actual behavior of states and individuals.1 The political conception of human rights therefore draws strongly on the actual experience of deploying human rights and so the expanding practice of international law in rights issues. Whereas broadly speaking the moral conception of human rights seeks more to achieve systematic philosophical completeness, the political conception looks more toward the probable success of the conception in the deployment of human rights law both within states and among states. I have suggested that this distinction between political and moral (naturalistic) accounts of human rights is a valuable teaching device. It is a valuable heuristic device since it helps the student to distinguish and broadly categorize accounts of human rights. No moral (or naturalistic) account entirely ignores the considerations that are of importance to political accounts, just as no political account entirely overlooks the wider philosophical background into which human rights claims may fall. The horizons of the two sets of arguments inevitably merge. However, the distinction helps us in demarcating the current state of debates on human rights and so is to be greatly welcomed. On the surface, Immanuel Kant’s presentation of his doctrine of right would seem to place him in the camp of those who proffer a wholly moral or naturalistic account of human rights, not only on the grounds that it derives from a moral universalism, spelled out in the idea of the categorical imperative, but also because he develops it within the tradition of natural right (Kant, RL). However, I shall argue in this chapter that it would be wrong to categorize Kant’s thinking in the merely moral school and that it should also, despite appearances to contrary, be seen as contributing to the political view. At this stage we can say – in anticipation of the argument we present – that his account of rights extends beyond the merely naturalistic point from which he sets out, and also addresses carefully the issue of the institutionalization and protection of rights which are of such justifiable concern to those who present a more narrowly political view. Arguably, Kant’s account of rights (and so human rights) retains the main merits of the moral/naturalistic approach 1

“This is sometimes referred to as the ‘lowest common denominator’ approach: in order to secure broad political agreement, one looks to the content of various traditions in order to find where they intersect or overlap with one another on basic values and it is then this overlapping set – the lowest common denominator – that is then presented as at least the core set of human rights.” Kenneth Baynes, “Toward a political conception of human rights,” Philosophy and Social Criticism vol 35, no 4,372.

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while at the same time addressing cogently some of the main questions of practicability which are raised by the political approach. To achieve this aim I want to open up the possibility that there is a systematic structure to human rights thinking – which was evinced in the debates that led to the setting up of the United Nations and the drafting of the UN declaration of rights – that is also given expression in Kant’s foundational doctrines about law and international relations. My thesis is not that Kant anticipated all that was to unfold in the twentieth-century elucidation and development of human rights on which the political account depends, but rather that the ideas that Kant introduces and expounds in his doctrine of right have clear and positive implications for the human rights culture of today, and so the role of the individual in international law. In this way it lends valuable support to the political view while remaining true to its universalistic premises. The argument which I wish to present can be made more strongly in the following terms. Since 1945 there has been significant progress in terms of the development of a body of international human rights law that recognizes the individual both as a subject of international law and the bearer of rights that extend beyond those accorded to be subjects by sovereign states. Furthermore, there have been substantial efforts to ground the existence and content of these rights in our innate human dignity by their framers in the United Nations’ legislative procedures, as well as via processes of intersubjective, cross-cultural agreement on the need for and legitimacy of our having such rights. However, in my view, these attempts have not of themselves provided a convincing theory to demonstrate why human beings should respect, protect, and fulfill these inventories of human rights now enshrined in international law. In reading Kant we can discover that his general theory of moral behavior, spelled out in the categorical imperative, and his work on cosmopolitan law provide us with the best theoretical tools to convince individuals of the pertinence and justice of the rights embodied in the nascent international legal order. Most crucially, I contend that contemporary human rights find their strongest justification in the idea of our equal freedom, which is, according to Kant, implicit within the idea of right or law. Law, on this Kantian understanding of its nature, while manifesting itself as a geographically differentiated phenomenon comprising domestic and international law, is in fact monistic – and, contrary to common assumption, domestic law is intrinsically dependent on laws establishing and maintaining a peaceful international order. With this in view, I wish, first, to suggest that there is a parallel development of arguments as between Kant’s doctrine of right and historical/political human rights thinking in the twentieth century and, secondly, I wish to

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discover what light the one argument can shed upon the other. At the highest level of abstraction, one key feature which Kant’s doctrine of right and human rights thinking shares is their insistence on universality. The title of the 1948 UN document is the very telling “Universal Declaration of Human Rights.” This may seem a coincidence. It may seem odd that the commissioners of the United Nations and their representatives on the drafting committee should share a particularly distinctive feature with Kant’s moral philosophy. The Declaration in its Preamble speaks of the “Member States” having “pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms” (emphasis added). However, from the perspective of Kant’s philosophical approach, the coincidence is not so unexpected since Kant always maintained that the principles that underlay his approach to moral philosophy could be found in the most ordinary moral consciousness (Kant, G 4: 404/58). In his practical philosophy, when deducing particular obligations or entitlements, Kant believed he was giving expression to the requirements of human beings as such. As a first step in this chapter we shall take a look at some of the political history which leads up to the drafting and the signing of the 1948 UN Declaration to discover what were some of the guiding ideas that inspired the event. Subsequently, we shall look at how the individual’s role is today understood in international law. We shall undertake both these inquiries with a view to introducing Kantian ideas on right which I believe excellently complement the human rights culture of today. Thus, a subsidiary yet important contribution of this chapter is to narrow the divide between what might be called the ideal or philosophical account of the origin of human rights and the historical-legal account of their origin on which the political conception rests. This might be summed up as a contrast between the “positivity” and the “normativity” of law. Positivists in the interpretation of law look for signs of law being implemented and enforced. For positivists it is essential for the functioning of law that it be seen as issuing commands that are obeyed (Green 2009). In contrast, those who defend the normative standard (of course there is no thinker worth her salt who actually neglects the dimension of actual obedience) believe that law is only law when it rests on coherent principles for acting.2 It seems here that we have utterly contrasting worlds. But are they? 2

For a discussion of the intellectual origins of human rights and an introduction to the debates that have occurred about the more precise influences determining their nature and their acceptance, see Pendas (2012) especially pp. 96–101.

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The Commission established to draw up the UN Declaration of Human Rights in the period immediately following the Second World War was made up of a number of practical politicians and diplomats; however, some of the key members were also of a more theoretical disposition with knowledge both of international law and philosophy. We shall briefly look at a sample of these commission members to learn something of the flavor of this unique process of seeking to settle a legal code of conduct for humanity as a whole. A notable chairperson of the commission was Eleanor Roosevelt (1884–1962), who was the widow of Franklin Delano Roosevelt, the longest-serving, and arguably one of the most successful US presidents ever. Franklin Roosevelt died shortly after the end of the war in Europe and was succeeded by his vice-president Harry S. Truman. Truman may well have turned to Eleanor Roosevelt as the United States’ representative because of the prestige of the family name; however, by all accounts she appears to have made an excellent chairperson. In 1968, she was awarded, posthumously, the UN Human Rights Prize. Another key member of the commission was the Lebanese representative Charles Habib Malik (1906–1987). Malik was a philosopher by training. He had studied under Alfred North Whitehead at Harvard, completing a PhD on “The metaphysics of Time in the philosophies of Whitehead and Heidegger” in 1937. Malik had even spent some time studying with Martin Heidegger at Freiburg University in 1935 with a traveling fellowship he had won from Harvard (Glendon 2001, pp. 125–26). In 1937, he returned to Beirut, where he became the founding member of the philosophy department at the American University. Malik was to play a crucial role in the final stages of the adoption of the UN Declaration as he served as President of the Economic and Social Council and as chair of the Third Committee of the General Assembly, which debated the provisions of the Declaration article by article (Glendon 2001, p. 151). The UN Human Rights website understandably depicts Malik in glowing terms. Peng-Chun Chang (1893–1957) was vicechair and the Chinese representative whose government was at that time involved in a civil war – which it was eventually to lose – with the Chinese communist forces. Chang was a playwright, philosopher, educator, and diplomat, and was well known in his country as a director of Chinese modern drama. He was concerned that a non-Western perspective be fully taken into account in setting out the UN document. Chang was able to respond to the philosophical arguments of Malik in kind, drawing on his own experience of Eastern philosophy. This illustrates nicely how the drafting process of the UN Declaration was not merely an ad hoc political process; many of the members of the Commission brought to their deliberations profound philosophical convictions gained through study and experience. Above all, each of the

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representatives was deeply engaged with their own cultures and brought a great deal of sophistication to their discussions. Two other notable members of the commission were a Chilean, Hernan Santa Cruz, and a Frenchman, Rene Cassin. Hernan Santa Cruz (1906–1999) brought a Latin American perspective to the Commission on Human Rights. Rene´ Cassin (1887–1976) was an extraordinary individual who brought a very wide experience to his role as a Commissioner. Although a Frenchman through and through, he was born in Bayonne in the South of France very close to the Spanish border and had very strong German connections through his father, who was from the Alsace. His Jewish background also made him highly sensitive to human rights issues related to race. Cassin had both practical and theoretical knowledge of the law, teaching the subject in Paris when war broke out in 1940 (Glendon 2001, p. 61). There is no doubting Cassin’s important influence in the framing of the UN Declaration. These individual members were aided by the Canadian diplomat and international lawyer John Humphrey (1905–1980), who headed the administrative side of the Commission. Humphrey, an international lawyer, gathered, analyzed, and presented the background documents that informed the Commission’s work. Thus, the UN Declaration was put together by individuals who were both intellectuals and political actors. Moreover, although they often acted politically (in response to their political masters), they also remained their own persons anchored in certain moral and philosophical perspectives. Although practical political perspectives weighed deeply upon the formulation of the Declaration – especially the emerging conflict of the Cold War, and the accelerating process of de-colonization – none the less there was a strong philosophical dimension to the founders’ debates. This was so not least because of the nature of the individuals represented on the Commission. We should also note that the major political conflict that was developing between East and West had a powerful moral and philosophical dimension since it was based on the theoretical objections of communists to the values of the liberal, capitalist West. The fact that common ground was reached at all has to be attributed to the intellectual skills of those most closely involved in the negotiations, individuals such as Eleanor Roosevelt and Charles Malik (Cmiel 2004, p. 129). 6.2 INTERNATIONAL LAW AND DOMESTIC LAW

The Universal Declaration of Human Rights forms as a document part of international law. Although not “legally binding,” as Klabbers puts it, “its force qua instrument is that of a recommendation. Its influence has, however,

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proved to be enormous.”3 But the document addresses both individuals and states and it requires actions and support from both. It is expected that states that support the Universal Declaration transfer into national law the rights and duties embodied in it. Thus, the Declaration as a document that is an integral part of today’s international law highlights remarkably the interdependence which now exists between international law and domestic law. This interdependence between international and domestic law is most apparent nowadays in the sphere of private international law. Private international law deals with the interactions between individuals, companies, private organizations, and other individuals, companies, and private organizations across states. Clearly, this growing interdependence between the domestic and international spheres of law is not always wholly beneficial. Some of the developments that may occur within private international law may well work in a manner antithetical to the human rights project. For example, the granting of mineral exploitation rights by poorer states may badly overlook the rights of the indigenous population. However, this is not an argument for reining in the interpenetration of national and international law, but rather an argument for bringing the human rights requirements recognized in international law to bear on seemingly wholly private agreements. This is an insight of Kant’s philosophy of law: the awareness of the overlapping dimensions of the various spheres of law, and, moreover, the creation of a new sphere of law – cosmopolitan law which strikingly brings out the interconnectedness of the individual and international legal sphere. We shall develop these points later in the chapter. Given the long history of the successful jurisdiction of law within states, it may seem natural to view the municipal or domestic condition of law as the true embodiment of law and to regard international law as a subsidiary, inferior extension and application of this realized municipal condition. This is sometimes an assumption that is shared by legal theorists themselves.4 We can perhaps understand why this is so since law within states with its various institutions: officers of the law (police), law courts, lawyers, judges, and prisons are very firmly established in a large number of states. It is easier as a lawyer to know where you are with domestic law. Those who break the law are identified and apprehended and quite often successfully punished. However, it might be said that legal writers who regard international law as inferior in this respect are operating often with an idealization of the workings of domestic law. Even at the domestic level no legislation is entirely effective or uncontroversial and without its problems to uphold. Clearly on the whole, in what we might see as settled civil societies, a large majority of the affected 3

Klabbers 2013, p. 109.

4

Cf. Reidy 2007, p. 185.

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population cooperate and obey. Even then it is the disposition of the large majority to respect and abide by law that provides the bedrock of the effectiveness of domestic law rather than the panoply of enforcement and punishment institutions. In a recent book on the question of the rule of law, the former British judge Tom Bingham remarks: I used to be much attracted by the description of public international law as “The Law of Nations”. It seemed to reflect the lustre of Gentili and Grotius, to invest the subject with a grandeur and dignity separating it from the mundane concerns of everyday life, to conjure up a vision of proud and equal sovereigns, declining to bow the knee to one another but condescending to parley through the medium of their immune envoys.5

But Bingham no longer believes this description is apt. Kant also rejects the idea of a law of nations in his account of right (6: 343/482). He acknowledges it is customary to use the term the “law of nations,” but he holds it strictly speaking to be incorrect. Kant’s implication is that nations or peoples are not involved in the formulation and recognition of international law. He thinks it should be replaced by the concept of a “law of states” as this reflects more properly the sphere in which international law is applicable. Kant goes along with the view that international law applies only among sovereign state actors – in the way imagined by the younger Bingham – but, like the older Bingham, does not let it rest at that. Kant finds something deeply unsatisfactory about a system of international law that is devoted only to the interests of state rulers. Law for Kant is about the protection of individual freedom, and this should apply just as much in the international sphere as in the domestic sphere. Kant shows this dissatisfaction most markedly by bringing into his theory of law a sphere where law can apply to individuals within the international sphere. This is the right of hospitality, which he introduces under the general title of cosmopolitan law. Kant quite clearly regards the existing international law of his day as a work in progress. He wishes to provide no encouragement to those who would go against the provisions of international law as they stand, but he is anxious to build on these foundations a more far-ranging and effective system of law. He argues this not simply on the grounds that he has a moral vision of a peaceful world order but because, in his view, such a system of a peaceful international order is implicit in law itself. Kant’s account of law is monistic.6 He does indeed see separate spheres of law: the domestic, the 5 6

Bingham 2011, p. 110. “Monism, as the label suggests, thinks of international law and domestic law (regardless of which domestic system) as different branches of what is fundamentally the same tree.” For

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international, and the cosmopolitan, but, in his account, they all belong to the one family of law. Unfortunately, this is a point that very few international lawyers make, even where they are personally keen that international law should attain full validity as law. We shall explore this notion of a peaceful world order and cosmopolitan law later. It is instructive here to compare Immanuel Kant’s vision of an ultimately peaceful world order with that envisaged by John Rawls. Rawls argues for a Law of Peoples which should be presented as a political concept alongside the existing structure of the law among states. Rawls rejects working within the current state framework on thought-provoking grounds. A very important consideration for Rawls is that peoples should not be seen as enjoying the traditional freedoms associated with the notion of state sovereignty.7 We need to “reformulate the powers of sovereignty” to create a more peaceful world through a law of peoples “to deny to states the traditional rights to war and to unrestricted internal autonomy.”8 Thus, as Rawls understands it, traditional international law accords to states too much power over their own people, and too great an independence in relation to other states in determining grounds for war. Kant would agree wholly with these conclusions. However, Kant’s response to these failures of international law is not simply to propose an alternative reforming structure alongside the existing system of states, but rather to try to bring out what he thinks is implicit in law at all levels and thus present in germ already in world politics. Kant looks to the organic evolution of the existing structure of law as well as the stimulus provided by republican states in peaceful federation. Rawls is more focused on the latter – an alternative manner of conceiving state relations in which a group of like-minded liberal states gradually builds up an alternative international structure. Of course there are ways of reading Rawls and Kant that bring (antecedent “ways”) their visions for an improved international society together, and Rawls conceives it as part of his intention to help further Kant’s model;9 however, it is useful for our discussion to highlight these differences of detail in Kant’s rejection of the received doctrine of international law and Rawls’s objections

7

Klabbers, Hans Kelsen is one of the most important figures in the history of the development of the monist view. “International law, so Kelsen said, makes it possible for states to exist (without international law there can be no states), and determines when and how acts of states are legally valid. The result of all this is the existence of a universal legal order where, so to speak, competences are distributed among sub-orders, overarched by public international law.” Klabbers 2013, p. 290. With Kant’s monism, however, no hierarchical relationship is posited as between domestic and international law. Both domestic and international law are aspects of the one legal system. Rawls 1999, p. 25. 8 Rawls 1999, pp. 26–7. 9 Rawls 1999, p. 10.

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to it. For Kant’s way forward in opposing the traditional absolute right of state sovereignty in his plan for perpetual peace is inspired his moral (an a priori) account of our “innate right” yet also demonstrates a political astuteness and sensibility which serves to widen its cross-national and cross-cultural appeal. The critique he offers in his legal philosophy of the right to wage war is to put forward on an understanding of the nature of the state – and not only of the peoples that make them up – that requires, first, an openness to federation with other states and, secondly, an acceptance of republican principles of government, and, thirdly, an understanding of interstate relations that makes the banning of the legality of war an axiom. For him, this is what is required by a system of law that is properly informed by a metaphysics of morals. Rawls looks for a new political conception of international law, whereas Kant seeks to transform our understanding of state and interstate politics within his metaphysics of morals in a manner which works with the inherited international system at the same time as transforming it. What moves Rawls to propose a law of peoples that goes beyond the perspective of traditional international law is also germane to our theme here. For Rawls, the reformulation to the law of peoples accords with a recent dramatic shift in how many would like international law to be understood. Since World War II international law has become stricter. It tends to limit a state’s right to wage war to instances of self-defense (also in the interests of collective security) and it also tends to restrict a state’s right to internal sovereignty. The role of human rights connects most obviously with the latter change as part of the effort to provide a suitable definition of, and limits on, a government’s internal sovereignty.10

Thus, Rawls sees his reforming model of international law as partly motivated by changes that have already come into place as a consequence of the acceptance of the principles of the 1948 Universal Declaration of Human Rights. In contrast, I am suggesting that the Declaration represents a partial realization of Kant’s ideals of a national and international regime of right. We have indicated that there may be a parallel between the concepts of right and international right Kant develops in his legal and political philosophy, not such that those concepts ground the presently emerging system of international law but are none the less to be evident and at work in it. For Kant, the logic of law or right pushes us toward a more interdependent and cooperative international regime. For Rawls, it is certain values or moral beliefs of what he calls “decent peoples” that lead us in this direction. Decent peoples are liberal 10

Rawls 1999, p. 27.

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peoples who “have a certain moral character. Like citizens in domestic society, liberal peoples are both reasonable and rational, and their rational conduct, as organized and expressed in their elections and votes, and the laws and policies of their government, is similarly constrained by their sense of what is reasonable.”11 Thus, what for Kant may come about through a fuller comprehension of what is involved in law and wise political leadership from leading states comes about for Rawls primarily through the good offices of the group of liberal peoples. Rawls sidesteps existing international law by switching the attention from states to peoples. Kant though is prepared to work through existing states and international law, looking for its reform through states themselves and their publics and enlightened (moral) leaders. In this respect the Kantian approach may be seen as more markedly “political” than the Rawlsian approach. Corroboration for Kant’s monist view of law may be found in the writings of the English lawyer Tom Bingham. Bingham thinks that the expression of the law of nations “if not actually pernicious, is better avoided.”12 He wants to avoid the use of the expression on the grounds that “although international law comprises a distinct and recognizable body of law with its own rules and institutions, it is a body of law complementary to the national laws of individual states, and in no way antagonistic to them.”13 In Kant’s doctrine of right the three spheres of law he enunciates – the domestic (internal public), the international (external public), and cosmopolitan (world citizen’s law) – are deeply interwoven. For Bingham, just as with Kant, it is wrong to see international law as “a thing apart.” International law as a discipline “rests on similar principles and pursues similar ends” to domestic law. It is vital to take into account that “observance of the rule of law is quite as important on the international plane as on the national, perhaps even more so.”14 This is a view that also emanates very strongly from Kant’s treatment of law. He indeed sees observance of law at the international level as essential to the working of the whole system, though he does not fail to note that the states of his day and their leaders often fail to pay due regard to the need to observe and carry out law at the international level. Kant, in particular, finds the embedding within international law of the right to go to war an extreme hindrance to the proper observance of law among states. In illustration of his point that international law and domestic law should be closely allied to each other, Bingham commends the current Ministerial Code “binding on British ministers” as it requires them as an “overarching duty” in carrying out their 11 14

Rawls 1999, p. 25. 12 Bingham 2011, p. 110. Bingham 2011, p. 110.

13

Bingham 2011, p. 110.

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policies “to comply with the law including international law and treaty obligations.”15 The placing of international law on the same footing as domestic law in this requirement of the code greatly impresses Bingham. 6.3 THE INDIVIDUAL IN INTERNATIONAL LAW

The emergence of human rights onto the international legal and political agenda that has occurred since 1945 brings the individual into play in international law in a manner previously unknown. We can turn to the work of the distinguished international lawyer Antonio Cassese to gain a recent view of the role that the individual is currently seen to play in international law (Cassese, 2001). We can see that the human rights discourse of the twentieth century has had an important impact on the presence of the individual in the international juridical sphere. Here, arguably, things have moved markedly in the direction of the recognition of the individual as a subject of international law, both through the interlocking of the spheres of domestic and international law and through the raising of the status of individual issues of freedom and dignity at the international level. As the Universal Declaration puts it in its opening lines, there is now recognition of “the inherent dignity and of the equal and inalienable rights of all members of the human family” as the “foundation of freedom, justice and peace in the world.” This truly is a novel development in law. As Ed Bates puts it, more than 60 years on from when Eleanor Roosevelt unveiled the UDHR, it seems that her description of it as a possible Magna Carta for mankind was most apt . . . the rights protected by the UDHR, and the two Covenants more generally, which today have been ratified by a large majority of states, have become part of a body of international law the scope, breadth, and general significance of which would have been impossible to predict in the late 1940s. And if these are the achievements of the last 60 years, then what further progress can we expect in this century and beyond?16

As Cassese notes, “over a long period of time – in fact during the whole of the first state of the development of the international community, from the seventeenth to the early twentieth century – human beings were under the exclusive control of states.”17 There were some exceptions where individuals gained rights, for example diplomatic protection or through treaties of commerce and 15 16

17

Bingham 2011, p. 110. In Moeckli, Shah, & Sivakumaran International Human Rights Law, Oxford: Oxford University Press, 2010. Cassese 2001, p. 78.

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navigation. “The question of a possible international legal status for individuals mainly arose with regard to piracy,”18 a practice which was prevalent in the seventeenth and eighteenth centuries but which gradually became less significant. So Cassese draws the general conclusion that “traditional international law did not include general rules conferring rights on individuals, regardless of their nationality.”19 Of course, if pirates were seen as subjects of international law it was not as the bearers of rights but rather as possessing obligations. At the time when Kant was writing on international law the general picture was that human individuals were restrained and subject to coercion solely by their own state, or by the rules and institutions of a state they might happen to be visiting. International law thus governed the behavior of individuals only at a second remove through the state. This is no longer wholly so. Nowadays, there is a great deal of international legislation embodied in covenants and treaties which relate directly to individual behavior wherever this may take place. As Cassese colorfully puts it, individuals were “under the control” only of the state – so that if they were outside the scope of state competence or effective sovereignty they were by implication beyond the rule of positive law. Contemporary (post-1945) human rights legislation tries to deal with this lacuna. Many treaties and covenants (e.g. on genocide and torture) apply to individuals wherever they might be and under whatever conditions of political development. They include rules which are expressly to be obeyed even where there is no municipal authority. So in very many spheres that concern human rights there is no longer escaping the jurisdiction of international law. The actions of the sovereign state in relation to its subject are no longer beyond scrutiny, complaint, and even redress. This is captured nicely by Andrew Clapham when he claims that “the idea that governments can legitimately concern themselves with the way in which another state treats its own nationals is a relatively recent innovation in international relations. The concept of non-interference in domestic affairs loomed large for much of the 20th century and was seen to foreclose meaningful human rights foreign policy.” However, by the “time of the 50th anniversary of the Universal Declaration of Human Rights in 1998, it was becoming commonplace to raise human rights issues in foreign relations,” even though “many of those concerned with realpolitik saw the exchanges as little more than cosmetic.”20 Pinned into law everywhere then is from a Kantian perspective the assumption that members of the human species have to live with one another in such 18 20

Cassese 2001, p. 75. 19 Cassese 2001, p. 78. Clapham Human Rights, Oxford: Oxford University Press, 2007, p. 57.

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a manner that each can potentially act freely. A broad depiction of right or law for Kant is the condition where the external freedom of one individual is compatible with the external freedom of all others. External freedom involves what we can do in the world, which, given that we are social creatures, inevitably concerns others. Right, as Kant puts it in the Metaphysics of Morals, “is therefore the sum of the conditions under which the choice of one can be united with of another in accordance with a universal law of freedom” (6: 231/387). So right gives rise to a system of obligations and authorizations where the independent actions of one person can be combined with the independent actions of others in such a way that all remain free. Law is not a haphazard arrangement based solely upon previous cases and the legislation of the state. For Kant, its precepts are logically interrelated: For the doctrine of right, the first part of the doctrine of morals, there is required a system derived from reason which could be called the metaphysics of right. But since the concept of right is a pure concept that still looks to practice (application to cases that come up in experience), a metaphysical system of right would also have to take account, in its divisions, of the empirical variety of such cases, in order to make its division complete (as is essential in constructing a system of reason). (6: 205/365)

This requires that we respect the general legislation of a sovereign authority which constrains the actions of each independent person equally.21 Now, when visiting other territories or encountering visitors from other territories this attitude of law has to be maintained even though there is not necessarily always an enforcing power at hand. 6.4 COSMOPOLITAN LAW: BRINGING THE INDIVIDUAL IN

The question we wish to raise here is: Does cosmopolitan law of the Kantian variety bring us to the situation that exists in Cassese’s terms under “modern law,”22 by which Cassese means the international law of the early twenty-first century? Another way of putting this is to ask whether Kant’s cosmopolitan law properly brings the individual into being as a subject of international law. These are the various dimensions of Kant’s notion of cosmopolitan right as presented in Perpetual Peace. Kant describes it as a right that is limited to the “conditions of universal hospitality” (8: 358/328) – and by hospitality here Kant means the right of a stranger anywhere upon the earth’s surface not to be 21

Williams 2007, p. 59.

22

Cassese 2001, p. 79.

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treated with aggression by the existing inhabitants. It is important for Kant that this hospitality should be seen not as a favor or as discretionary; rather, it has legal force. As he puts it, “here we are concerned not with philanthropy, but with right.” For Kant, cosmopolitan right is part of any existing legal state of affairs. Now this right to hospitality should not be interpreted as a right to be treated as a guest – which can occur only if there are already prior legal arrangements which give the visitor a special status. Kant emphasizes that the right to hospitality is not a privilege but rather it is “a right of resort”23 (8: 358/329). Kant gives very clear and interesting grounds for this right of resort: “For all men are entitled to present themselves in the society of others by virtue of their right to communal possession of the earth’s surface.” Cosmopolitan right presupposes this original right of common possession by the human race as a whole. And “since the earth is a globe,” human beings cannot disperse “over an infinite area, but must necessarily tolerate one another’s company.” It has to be assumed that no individual originally “has a greater right than anyone else to occupy any particular portion of the earth” (8: 106/329). Although we do not have rights of domicile everywhere, we do as individuals have a right to call by anywhere on the earth’s surface. We have this right of presence on the basis of a prior right of the original common possession of the earth’s surface. This right to present ourselves anywhere simply assumes that we have the potential to enter into commercial, equal relationships with the inhabitants (Kant 6: 358/8). Those inhabitants can of course reject our proposals, but they are not entitled to treat us as enemies or criminals. Synonyms offered for hospitality include welcome, friendliness, cordiality, openness, warmth, and generosity. Many of these terms convey part of Kant’s meaning: possibly warmth and generosity take the meaning too far in the direction of a right to be a guest but understood within the legal context; welcome, friendliness, and cordiality suggest the kind of right of visiting that Kant has in mind. As co-inhabitants of the earth’s limited surface we should accord to each other a respectful recognition which acknowledges our dignity as human beings and our standing on arrival as blameless (prior to our having acted at all) legal subjects. Cosmopolitan right flows naturally for Kant from national and international law. Just as national law requires international law to complete it, so national and international law require cosmopolitan right or law for their completion. Kant thinks that cosmopolitan right can be expressed 23

The translation is drawn from Kant’s Political Writings, edited by Hans Reiss and translated by H.B. Nisbet, p. 106. Mary Gregor translates Besuchsrecht in Kant’s Practical Philosophy more literally as the “right to visit.”

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in another way as the law or right of a state of peoples or nations (Vo¨lkerstaatsrechts) (6: 311/455). Cosmopolitan right should supply the rules for a (Vo¨lkerstaat) state made up of all the peoples of the earth where those peoples would already be organized into their own states. Through their own state and the states of other peoples, individuals would enjoy all the rights that cosmopolitan law implies. 6.5 HOSPITALITY, GENOCIDE, AND STATELESSNESS

Kant’s attempts to conceive of the whole population of the earth as one potential legal community anticipate most markedly twentieth-century developments in relation to the place of stateless persons in the international legal system. Under earlier international law, stateless persons had no official standing in relation to the communities within which they resided24 (and this remains the case in the many countries that have failed to ratify the relevant UN conventions). The 1954 Convention relating to the Status of Stateless People and the 1961 Convention on the Reduction of Statelessness in keeping with Kant’s principle of hospitality make it incumbent upon signatories to take every step possible to mitigate the effects of statelessness upon individuals. Stateless individuals residing in the territories of signatories are not necessarily granted immediate rights to nationality; however, the spirit of these UN conventions is that the stateless person should be treated with respect as part of the human family and potentially worthy of citizenship. These conventions place pressure on both states receiving stateless persons and states that may be tempted to render some of their nationals stateless to avoid the condition. The conventions do not go into the grounds for statelessness nor do they specify precisely why it is wrong; however, in Kant’s notion of our original common possession of the earth’s surface and our right to seek to make ourselves present everywhere on the globe we find an explanation of why allowing such a condition is wholly wrong. Now, according to Cassese, “states have lost their exclusive monopoly over individuals, in addition to gradually yielding some of their powers to other entities such as international organisations. Individuals have gradually come to be regarded as holders of internationally material interests but also as capable of infringing fundamental values of the world community.”25 Can we designate this as a move in the Kantian direction? On the positive side, it can be said that Cassese charts in the liveliest of ways the movement toward 24 25

Kelsen, Principles of International Law, New York: Reinhardt and Company, 1959, p. 247. Cassese 2001, p. 79.

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the recognition of individual rights at the international level which would accord with recognition of the relevance of the principle of hospitality. However, that Cassese supposes that the pressure for change in the standing of the individual in international law comes not from within law itself but is rather a consequence of the introduction into law of purely ethical concepts (“values”) indicates a different understanding of the dynamics of the reform of international law. Kant’s conceptions of a reformed international law and the uptake of cosmopolitan law presuppose, in contrast, a developing progressive view of law itself. Kant envisages the actual laws of human society evolving into what implicitly the idea of law requires. From a Kantian perspective, it could be argued that what Cassese describes as the startling emergence of the individual as a presence in international law is precisely what should have happened anyway. Arguably built in to Kant’s understanding of law is that the individual as a legal subject should outgrow the sole jurisdiction of the home state. Or, stated from another perspective, that there should be a form of global jurisdiction that does not depend solely upon the authority of individual states. Individual states should therefore be seen as carrying out not only national responsibilities but also universal duties. All states, for instance, should respect the right of foreign visitors and all states should also seek to become part of a peaceful federation of free states. Cassese acknowledges that “individuals have been granted legal rights that are operational at the international level.” By the same token individuals have acquired international legal obligations: “states have deemed it fit to extend obligations” to individuals, by enjoining them to comply “with some fundamental new values and calling them to account for any breach of such values.”26 The presence of the individual as a subject within the framework of international law of the present day is indubitable for Cassese. He sees this as a process that still has a long way to go. He is prepared to challenge the monopoly of the state as a subject in international law by raising the individual to a status almost equal to that currently enjoyed by the state.

26

The idea of human rights is for Cassese quite explosive in its implications. The arrival of human rights on the international scene is, indeed, a remarkable event because it is a subversive theory destined to foster tension and conflict among states. Essentially it is meant to tear aside the veil that in the past covered and protected sovereignty, giving each State the appearance of a fully armoured titanic structure, perceived by other State only “as a whole,” the inner mechanisms of which could not be tampered with. Today the human rights doctrine forces States to give account of how they treat their nationals, administer justice, run prisons, and so on. Essentially, therefore, it can subvert their domestic order and, consequently, the traditional configuration of the international community as well. (Cassese 2001, p. 349)

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Many of these changes are implicit in Kant’s account of hospitality. From a Kantian perspective, we are entitled to be where we find ourselves on the earth’s surface. We should neither treat visitors to our part of the world with hostility, nor should we expect to be treated with hostility when we ourselves visit other territories. No one else has a prior or even equal right to be where we already are resident – unless they too have established a long presence. Thus, we cannot expel the resident population. And, on the other hand, the resident population cannot set out to harm us merely because we have visited. And of course genocide is ruled out. In 1946, the UN General Assembly stated in Resolution 96(I): Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and the aims of the United Nations . . . The General Assembly, therefore . . . affirms that genocide is a crime under international law.27

We can spell this out in Kantian terms in the following way. Killing any other person belonging to a visiting group merely because that person is an alien is categorically ruled out. Clearly, resident populations should also remain untouched by visitors. There is no wrong that is being committed by being who we are and residing in our traditional homeland. If it is a crime to seek to do away with others when we are visitors, it is even a greater crime to seek to do away with our fellow inhabitants simply for being who they are and where they are. Self-evidently what we can’t do to our fellow subjects we cannot also do to outsiders. Members of a civil society are not permitted by Kant’s principle of hospitality simply to remove inhabitants of other territories from their homelands or in any way to deny them their rights to life; quite clearly, in their home territories the same standards apply and indeed each individual should be given full legal protection by the home state. Although Kant does not provide a specific account of genocide, it is implicit in his understanding of rights the prohibition of policies of a genocidal nature. 6.6 THE UN DECLARATION OF RIGHTS AND KANTIAN RIGHTS

As we have noted, Kant is typically regarded as presenting a theory of international law that underpins a moral rather than a political view of human rights. 27

Moekli, 542.

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He draws upon his general moral philosophy, without doubt, to ground his concept of right. In terms of his philosophical system, the doctrine of right is a part of his practical philosophy. He aims to ground right and rights on an a priori account of how embodied rational beings should relate to one another as the sole intelligent-rational inhabitants of a globe. An a priori account for Kant is one that precedes experience and, indeed, plays an important part in making experience possible. As Graham Bird notes, Kant’s use of the notion of the a priori is tied very closely to the “Copernican experiment” he inaugurates in philosophy. As Bird puts it, “the experiment is to reverse the previous philosophical assumption that all knowledge must conform to objects, and to suppose instead that objects must conform to our knowledge. The supposition does not mean either that we can literally create objects of experience or that every aspect of objects must conform to our knowledge.”28 Kant firmly believed that the human mind played a very powerful role in bringing together the world of our experience. We cannot here go into the controversies that this supposition has aroused in philosophy; however, I believe it plays a significant and valuable role not only in Kant’s theoretical philosophy but also in his practical philosophy. In acting we construct our everyday world. And to act certain rational presuppositions are necessary. The philosophy of right exemplifies some of those rational presuppositions. The political sphere is an important arena of human action, and in order for it to be possible, rational principles of the philosophy of right have to be drawn on. In the Doctrine of Right, Kant puts his position on the status of law in this way. Right, he argues, is part of the teachings of morality. “They command for everyone, without taking into account his inclinations, merely because and insofar as he is free and has practical reason” (6: 216/371). The individual does “not derive instruction” in the laws of morality “from observing himself and his animal nature or from perceiving the ways of the world.” “Reason commands how we are to act even though no example of this could be found, and it takes no account of the advantages we can thereby gain, which only experience could teach us” (6: 216/371). In deriving what is right we have to look first of all to our a priori reason. And since one calls “a system of a priori concepts alone” “metaphysics, a practical philosophy, which has nature but freedom of choice for its object,” this will “presuppose and require a metaphysics of morals.” For Kant, this implies that “it is itself a duty to have such a metaphysics” for each individual and in addition he argues “every human being also has it within himself, though as a rule only in an obscure way; for without a priori principles how could he believe he has a giving of universal law within 28

Bird 2006, pp. 38–9.

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himself” (6: 216/371–2). Here, Kant brings in a psychological intuition to strengthen his point. He thinks everyone likes to believe they are in the right or at least they all like to believe that they can bring forward general arguments that support the legitimacy of their actions. Thus, it can be indirectly assumed that every human individual has the capacity to grasp a moral argument and the desire that others accept the power of their argument. But Kant strongly wants to claim that not any old argument will do the job. The argument that prevails has to be the product of reason which all can freely examine and seek to verify. We need certain principles of application from a metaphysics of right in seeking to interact with other human individuals just as we need aspects of the metaphysics of nature to guide our study and scientific evaluation of the natural world. Just as there must be principles in a metaphysics of nature for applying those highest universal principles of a nature in general to objects of experience, a metaphysics of morals cannot dispense with principles of application, and [in the Doctrine of Right] we shall often have to take as our object the particular nature of human beings, which cognized only by experience, in order to show in it what can be inferred from universal moral principles. But this will in no way detract from the purity of these principles or cast doubt on their a priori source. (Kant 6: 216)

These principles of application derived with reference to the observed behavior of humans give an indispensable frame of reference through which we can seek to act in a manner befitting of rational beings. Although in working out a general doctrine of law some recourse will have to be made to the actual circumstances and history of the human species, this anthropological material will not be allowed to dominate (contaminate) the pure theoretical part of the subject: “a metaphysics of morals cannot be based upon anthropology but can still be applied to it” (6: 217/372). Kant believes that the study of the human species from the moral point of view has a great deal to offer the student of law. Indeed, in some respects it is indispensable: “moral anthropology, which, however, would deal only with the subjective conditions in human nature that hinder people or help them in fulfilling the laws of a metaphysics of morals. It would deal with the development, spreading, and strengthening of moral principles (in education in schools and in popular instruction), and with other similar teachings and precepts based on experience.”29 The doctrine of right is attributable to practical reason: 29

It cannot be dispensed with, but it must not precede a metaphysics of morals or be mixed with it; for one would then run the risk of bringing forth false of or at least indulgent moral laws,

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Hence philosophy can understand in its practical part (as compared to its theoretical part) no technically practical doctrine but only a morally practical doctrine; and if the proficiency of choice in accordance with the laws of freedom, in contrast to laws of nature, is also called art here, by this would have to be understood a kind of art that makes possible a system of freedom like a system of nature, truly a divine art were we in a position to carry out fully, by means of it, what reason prescribes and to put the idea of it into effect. (6: 217/372–3)

What we have to aim at is conducting ourselves in such a way that we can achieve a freedom of choice in what we determine to do and how we act that is compatible with the rule of law. This for Kant is an extraordinary undertaking: combining individual freedom of action with the freedom of action of all others on the planet. And it can only be achieved through observing the rule of law, which includes the possibility of coercion for non-compliance. As Kant sees it, there can be no external freedom without the possibility of punishment for non-compliance with the rules of freedom. That Kant views this as a universal requirement, taking in the human population of the planet as a whole, raises extraordinary difficulties since, although individual human beings can be subject to coercive punishment, the states within which individuals live cannot be treated in this way. Kant wants to work with these states to create a worldwide system of law. Their role is to apply punishment to individuals within their jurisdiction; for this reason, they cannot be subject to coercion themselves. However, states should also conduct themselves in their relations with each other in such a manner that a universal system of justice can come into being. Thus, although motivated by very clear moral ideals, Kant’s view of the introduction and implementation of rights worldwide depends on an intricate political program. Rights within a state depend upon the creation of powerful legal sovereign subject to the recall of citizens, and rights internationally depend upon the cooperation of such rightfully established sovereign states. Integral to upholding law within the state is the upholding of law in relation to other states. The drawing up of the UN Declaration of Human Rights in the period after the Second World War occurred almost entirely in an opposite manner from which would represent as unattainable what has only not been attained just because the law has not been seen and presented in its purity (in which its strength consists) or because spurious or impure incentives were used for what is itself in conformity with duty and good. A doctrine of law deduced solely from moral anthropology “would leave no certain [reliable] moral principles either to guide judgment or to discipline the mind in observance of duty, the precepts of which must be given a priori by pure reason alone” (6: 217/372).

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the a priori deduction that Kant advocated. Although philosophical considerations and, indeed, philosophers were not entirely absent from the considerations, one of the main objectives of the authors of the declaration was to draw upon the historical and political experiences of the human race. Those involved placed a primary emphasis on the developments that had already occurred in domestic and international law. They were particularly anxious to avoid the errors of the past which had led to large parts of the earth being devastated by war. The purpose was to draw up from the general history of the human race key principles that might permit peace, flourishing, and freedom. An area of sharp ideological division concerned the inclusion of what are described as social and economic rights in the Declaration. As Mary Ann Glendon remarks: with regard to the economic, social and cultural rights, Eleanor Roosevelt told the General Assembly on the eve of the Declaration’s adoption that her government gave its “wholehearted support” to those articles. The United States did not, however, consider them to “imply an obligation on governments to assure the enjoyment of these rights by direct governmental action.”30

Western governments tended to be strong supporters of rights of negative freedom, which spelled out what might not be done to individuals, but they were more lukewarm about more positive notions of freedom which stressed what should be done for people. As Glendon notes, “representatives of Western liberal democracies were concerned not to dampen private initiative or to give too much power to the state, while Soviet-bloc representatives maintained that these [economic and social] rights were meaningless without a strong state in charge of health, education and welfare.”31 The drafts which were drawn up by the Commission which was created to frame the declaration had a very wide consultative reference. The first draft was under the charge of John Humphrey, the Canadian international lawyer who was a member of the UN bureaucracy.32 Humphrey not only made sure a large number of domestic legal documents on rights were consulted but also very many inter-governmental documents. [He] was particularly impressed by two contemporary declarations: the draft of a “Pan American” declaration then in deliberation in Latin America, and the 1944 “Statement of the Essential Human Rights” produced on the basis of a study sponsored by the American Law Institute (ALI), a prestigious organization of judges, practitioners, and academics dedicated to the improvement of the law.33 30 33

Glendon 2001, p. 186. Glendon 2001, p. 57.

31

Glendon 2001, p. 187.

32

Glendon 2001, p. 43.

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Humphrey also had the UN officials consult national documents such as the British Bill of Rights (1689), United States Declaration of Independence (1776), and the French Declaration of the Rights of Man and Citizen (1789). A further draft was produced by a member of the Drafting Committee proper, Rene Cassin. His connection with De Gaulle and the free French had brought him into a very prominent position in the post-war French government. Cassin’s draft (often later falsely regarded as the first draft) was to focus more on providing a context for the various possible rights Humphrey had drawn up and set them in a more coherent order. Whereas Humphrey was “a practical man impatient with what he called ‘philosophical assertions’” who “had deliberately left out any material other than what he considered the key ‘justiciable’ rights gathered from his various sources,” Cassin sought to imitate “the structure of the Code Napolean” “to guide the interpretation of each specific provision.”34 Whereas Humphrey sought to gather as assiduously as possible of the historical data, Cassin sought to give the document a coherent legal exposition. Although the inductive methods deployed by Humphrey and Cassin represent a complete antithesis to Kant’s deductive a priori doctrine of right, there is one point at which they come together. Although Kant’s principles are derived philosophically (or metaphysically as he might put it), they are not intended to be alien to ordinary human concerns. As Kant sees it, they are not principles that are known to philosophers alone. In terms of practical knowledge, Kant believes the ordinary individual can be highly intelligent. Indeed, in his view “in moral matters” human reason can quite easily be brought to a “high degree of correctness and accomplishment” (4: 392/47). Kant thinks his general moral philosophy can be made accessible to all reflecting human beings because of the skills in moral thinking already demonstrated in everyday life. He thinks of his task in practical philosophy as bringing our principles that are already present in human intercourse. Indeed, he sees those principles as presupposed by ordinary human experience. For example, ordinary individuals do not need philosophers to tell them that lying is wrong. Individuals discover this rule both from their own interaction with others and from their own intuition. Where a philosopher might help is in demonstrating in connection with other principles why moral rules such as this are binding. Acting in the world can only occur effectively within a structured moral and legal environment. Kant sees himself as deducing those principles which make our everyday moral and

34

Glendon 2001, p. 63

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legal environment possible.35 Just as we cannot understand the physical world without presupposing the notion of causality, so we cannot countenance a public, legal world without presupposing such notions as freedom and equality. Thus, although the framers of the UN Declaration of Human Rights primarily saw themselves as bringing together the legal conclusions of many thousands of years of human history, giving voice to the legal conscience of mankind, from a Kantian perspective they would necessarily have to draw upon a philosophical theory near to his own. The moral idea of rights and the political goal of establishing human rights were equally present in the minds of those who first brought into being today’s human rights regime. One of the great merits of the drafting process that led to the emergence of the UN Declaration was its empirical and historical comprehensiveness. Every effort was taken to seek out any relevant source, and though the Declaration was clearly inspired by Western (and strongly European) aspirations it cannot be said that other voices were ignored. The composition of the Commission included Latin American representatives, representatives from China, India, Africa, and the Middle East. What is most surprising is the level of agreement that arose from this very wide sweep of opinions. In a parallel process, Julian Huxley, who was in charge of UNESCO, had established a philosophers committee on the Theoretical Bases of Human Rights, chaired by E. H. Carr, with the Chicago philosopher Richard Mckeon and the French social philosopher Jacques Maritain as two of its most “active members.”36 One of the measures that this group took was to send out a “questionnaire to statesmen and scholars around the world,” “soliciting their views on the idea of a universal declaration of human rights.”37 Notable figures such as Mahatma

35

36

In this way common human reason is impelled, not by some need of speculation (which never touches it as long as it is content to be mere sound reason), but on practical grounds themselves, to go out of its sphere and to take a step into the field of practical philosophy, in order to obtain there information and distinct instruction regarding the source of its principle and the correct determination of this principle in comparison with maxims based on need and inclination, so that it may escape from its predicament about claims from both sides and not run the risk of being deprived of all genuine moral principles through the ambiguity into which it easily falls. So there develops unnoticed in common practical reason as well, when it cultivates itself, a dialectic that constrains it to seek help in philosophy, just as happens in its theoretical use; and the first will, accordingly, find no more rest than the other except in a complete critique of our reason. (4: 405/60) “Es ist eine herrliche Sache um die Unschuld, nur ist es auch wiederum sehr schlimm, daß sie sich nicht wohl bewahren la¨ßt und leicht verfu¨hrt wird” (4: 404–5/59) (There is something splendid about innocence; but what is bad about it, in turn, is that it cannot protect itself very well and is easily seduced.) Glendon 2001, p. 51. 37 Glendon 2001, p. 51.

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Gandhi, Teilhard de Chardin, Benedetto Croce, and Salvador Madariaga were consulted. The intriguing thing is that “the results of the UNESCO survey were encouraging: they indicated that the principles underlying the draft Declaration were present in many cultural and religious traditions, though not always expressed in terms of rights.”38 The UNESCO group concluded that it was possible to achieve agreement across cultures about certain rights that “may be seen as implicit in man’s nature as an individual and as a member of society” and follow from the fundamental right to life.39 Although statements such as this do not demonstrate the validity of Kant’s a priori approach, they none the less suggest that universalistic conclusions might well be reached by means that do not solely depend on the empirical aggregation of cross-national and cross-cultural views. Kant was intent on developing in his practical philosophy principles for action which applied to rational, natural, embodied individuals. It may seem a highly abstract approach to begin from human life as such; however, key principles do emerge from such an approach which do not contradict the findings of cross-national and cross-cultural studies. For Kant, the fundamental principles of right are fixed or unchangeable and they are not to be derived from what actually occurs in the world, but they are to be provided by those who are properly informed about the nature of law. There is for Kant an inescapably metaphysical side to determining the rights of the human individual. They have to be worked out theoretically by philosophers of law. Beginning from our innate freedom and consequent equality, philosophers of law have to spell out the implications for rightful relations. In the essay “On the Common Saying what may be correct in theory but it is of no use in Practice” Kant presents freedom in the following way: No one can coerce me to be happy in his way (as he thinks of the welfare of other human beings); instead, each may seek his happiness in the way that seems good to him, provided he does not infringe upon that freedom of others to strive for a like end which can coexist with the freedom of everyone in accordance with a possible universal law (that does not infringe on the right of another) (8: 290/291).

For Kant, the human individual’s fundamental right is one to freedom. For this right to come about fully in society entails that we should not be subject to the arbitrary coercion of others. And in this respect we are all placed on an equal footing.

38

Glendon 2001, p. 77.

39

Glendon 2001, p. 77.

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In some respects it is fashionable nowadays to get to human rights and so to the role of the individual in international law by avoiding any metaphysics or any foundational philosophy (Cf. Beitz 2009, chapter 5). There is a perhaps a downto-earth justification for this since metaphysics can be so varied in all walks of life and all corners of the earth. Here the political account of human rights attains its traction. There seems so much to gain by just getting on with things and trying to realize as many basic rights for people as swiftly as possible. Thus, to dwell on foundational philosophical considerations might seem to detract from the necessary task of seeking to implement and safeguard human rights in a widespread way throughout the globe. This understandably gives strength to the political conception of human rights. None the less, the challenge that reading Kant on law and rights raises is his firm view that in implementing and maintaining rights a coherent metaphysics is absolutely necessary. From a Kantian point of view, the political account requires a moral underpinning. It is difficult to deny that there has been immense progress in the field of human rights since the UN Declaration was first made in 1948. Indeed, the standing of the individual under international law has been transformed from that of lowly insignificance to one of major importance. The framers who gave us the Declaration of Human Rights showed a great deal of pragmatism and prudent good sense in bringing the Declaration into being in the first place, and the subsequent leadership of the United Nations and those nations committed to human rights has shown extraordinary patience in bringing human rights considerations to bear both in situations of international conflict and perhaps most impressively in the day-to-day running of the United Nations and through its various subsequent covenants and other attempts at international lawmaking. The various covenants themselves – such as the recent one covering the rights of the disabled – are a remarkable testimony to the effectiveness of practical measures built upon political consensus. However, what neither the UN Declaration nor the Covenants can provide is a satisfactory justification for the measures and proposals they include. No doubt many of the framers of these international legal instruments may have held private, metaphysical views and beliefs that informed their work but here consensus was impossible to attain. What the extant international legislation on human rights fails to provide – and indeed as an attempt to create positive law among nations, this is only as things should be – is an answer to the question: Why should the human inhabitants of this planet adhere to the rules that are required by a proper respect for human dignity and so human rights? For this we need some kind of tale about the human species and the nature of

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acceptable social relationships to sustain our belief and support for human rights. Here, Kant steps in and provides a compelling narrative. Human rights can only be realized in the evolving practice of the human race. Kant offers a framework for distinctively human action. He demonstrates how some maxims for acting are acceptable and others are not. He has a vision of appropriate moral behavior – encapsulated in the notion of the categorical imperative (4: 421–434/73–84) – that should underlie our understanding of rights and law. Moreover, he has a concept of law that embraces both domestic and international law and most importantly pays regard to the key relationship between the individual and international law. Through the novel idea of cosmopolitan law he links all individuals upon the planet to a peacefully regulated international order with a federation of independent states at its heart. What makes possible this global vision is the metaphysical idea of our one innate right: the right to freedom from the arbitrary interference of others in the determination of our choices. This is an invaluable contribution in the practical dimension of human existence. It is not antithetical to a political conception of human right; it is rather essential for its acceptance and implementation. To those that suggest that Kant’s notion of freedom – which underpins his theory of right – plays too much into the hands of contemporary neoliberalism we have to answer that this criticism is based on a superficial understanding of Kant’s notion of innate right and freedom. In arguing for our innate right to freedom, Kant is not arguing for a complete independence of each from one another; rather, he is arguing for the correct understanding of how we are to interpret our rightful dependence upon one another. Freedom for Kant is inextricably linked with our innate equality and relies for its exercise upon our consent and the consent of others for what are acceptable actions. Kant takes it for granted that we cannot constrain others further than we agree to be constrained ourselves. Thus, Kant’s notion of freedom is antithetical both to the domination of one nation over another and the domination of one individual over another. Although Kant was only familiar with the capitalist form of economic organization and indeed favored it strongly over the earlier feudal form, it is wrong to assume that he would subscribe to the forms of overseas expansion of capitalism that occurred. It has been suggested that the opening up of international law to the individual that has occurred over the last century has not in the end greatly favored individual rights, since capitalist companies have taken advantage of the new international legal system to establish exploitative economic relations in more deprived parts of the world. But surely this exploitation has occurred, not because of the increased access of individuals worldwide to an international human rights culture, but rather through the failure of poorer nations to adopt

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internal legal systems that match up to the requirements of the UN Declaration of Human Rights. Kant’s account of our innate freedom and equality can be deployed against the neoliberal view that state interference and power should be minimized. Kant’s notion of cosmopolitan right requires a legitimate and effective state in order to ensure that fairness and equality are maintained. Freedom from the Kantian perspective is not synonymous with a minimal state, but rather a state based upon popular sovereignty which has the power to implement universal norms such as those embodied in the UN Declaration of Human Rights. Adopting the Kantian viewpoint means that the pursuit of freedom can be harmonized with social justice. According to Mary Ann Glendon, the framers of the UN declaration were aware that the international human rights movement would not find its feet solely through the combined political power of the United Nations. Though necessary to the success of the process UN resolutions and treaties would not hold force solely through coercive measures. Like Kant they too acknowledged that some core questions have to be answered positively in ordinary discourse for human rights to be effective. Individuals have to be convinced of the justice of the rights that are being proposed. The framers’ belief was that “culture is prior to law.”40 And we can draw on Kant’s doctrine of right to help create that culture. Although Kant may not have provided a fully fledged philosophical justification of today’s human rights (were such an objective at all possible), I believe it is entirely plausible, using some of Kant’s key concepts, to present a Kantian justification for the new world of rights that is at hand. With the benefit of hindsight we can add to Kant’s idea of an integrated view of law at all levels and his ground-breaking idea of cosmopolitan right. Maybe his idea of “innate right” brings too much to mind the tradition of natural law, which he sought constructively to transcend. However, although we may wish to set to one side the term, I would argue that the idea it conveys of the freedom lying at the heart of our understanding and justification of law is thoroughly sound. What, in my view, the notion of innate rights draws our attention to are those standards for human interaction which – once achieved – should not later be given up or compromised. They are implicit in the relations between humans – a species of rational animals – though not immediately realized, but should come into existence over time. Those innate rights lead us to contemporary human rights which provide us with the benchmarks for an authentically civilized life. Contemporary human rights find their strongest justification in the idea of our equal freedom with all other individuals and our 40

Glendon 2001, p. 238.

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derivative and concomitant right to lead a life where we are – with the support and cooperation of others – all our own masters. The moral idea of our inborn rights properly deployed provides the justification for realizing the political ideal of human rights for all. A political conception of human rights correctly focuses on what is attainable in the contemporary world, but without the support of a universalistic moral conception its attraction will wear thin. BIBLIOGRAPHY Kant’s works are cited from the Akademische Ausgabe (Berlin, 1898 onwards) and Kant’s Practical Philosophy (Cambridge: Cambridge University Press, 1997). The pagination in English is given second. A small number of translations also refer to Kant’s Political Writings (Cambridge: Cambridge University Press, 1991) Beitz, C. (2009) The Idea of Human Rights, Oxford University Press: Oxford. Bingham, T. (2011) The Rule of Law, London: Penguin Books. Bird, G. (2006) The Revolutionary Kant, Chicago: Open Court. Cassese, A. (2001) International Law, Oxford: Oxford University Press. Clapham, A. (2007) Human Rights, Oxford: Oxford University Press. Cmiel, K. (2004) “The Recent History of Human Rights,” American Historical Review, vol. 109 no. 1, pp. 117–35. Glendon, M. A. (2001) A World Made New, New York: Random House. Green L. (2003) “Legal Positivism,” Stanford Encyclopedia of Philosophy, [Electronic]: http://plato.stanford.edu/entries/legal-positivism/#toc Griffin, R. (2008) On Human Rights, Oxford: Oxford University Press. Kelsen, H. (1959) Principles of International Law, New York: Reinhardt and Company. Klabbers, J. (2013) International Law, Cambridge: Cambridge University Press. Moeckli, D., Shah, S. and Sivakumaran, S. (2010) International Human Rights Law, Oxford: Oxford University Press. Pendas, D. O. (2012) “Toward a New Politics? On the Recent Historiography of Human Rights,” Contemporary European History, vol. 21 no. 1, pp. 95–111. Rawls, J. (1999) The Law of Peoples, Cambridge, MA: Harvard University Press. Reidy, D. A. (2007) On the Philosophy of Law, Belmont, CA: Thomson Wadsworth. Williams, H. (2007) “Kantian Cosmopolitan Right,” Politics and Ethics Review, vol. 3 no. 1, pp. 57–72.

part ii

7 Human Rights Solidarity Moral or Political? Seth Mayer

7.1 INTRODUCTION

Philosophers are in the midst of a debate over the most appropriate methodology for developing theories of human rights. Some defend a traditional, moral approach, deriving a theory of human rights directly from ethical theory.1 Other philosophers defend political conceptions of human rights, where normative claims rest on an interpretation of the functional role of human rights in modern political practices.2 The debate between these two approaches remains unresolved. In this chapter, I aim to offer novel considerations in favor of adopting a political conception, although I do not aim to completely settle this debate. I argue that political approaches offer a better way of understanding the solidarity necessary for realizing human rights. Because political conceptions of solidarity determine a concrete vehicle for pursuing human rights that solidarity is built around, they are superior to moral conceptions, which fail to do so. While some human rights theorists have argued for the significance of solidarity for realizing human rights, few have related this issue to the debate between moral and political conceptions of human rights.3 To bring these

I’m grateful for valuable suggestions and feedback on this chapter from Nina Brewer-Davis, Antonio Capuano, Gent Carrabregu, Cristina Lafont, Reidar Maliks, Italia Patti, Carlos Pereira Di Salvo, Jan Hauke Plaßmann, Kerstin Reibold, and Johan Karlsson Schaffer. 1 For examples of the moral conception, see Gewirth 1982; Griffin 2008; Sen 2009; and Wellman 2011. 2 For some prominent examples of the political conception, see Rawls 2002; Beitz 2009; Raz 2010; Cohen 2010; and Buchanan 2013. 3 For an example of a theorist referring to human rights solidarity’s importance, see Flynn 2014, p. 185.

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discussions together, I begin by distinguishing moral and political conceptions of human rights, and articulating a crucial distinction between strongly and weakly practice-dependent political views. I then explain solidarity’s role in realizing human rights and argue that any conception of human rights must theorize solidarity. Next, I outline how each approach can make sense of solidarity in light of its central methodological commitments, examining the advantages and disadvantages of each approach. Ultimately, I argue that because political conceptions refer to existent practices, they have a strong advantage over moral conceptions, which understand human rights in a practice-independent way. Moral theories do not designate the practices and institutions through which those committed to human rights should try to achieve their goals. As a result, such approaches fail to make sense of the fidelity and loyalty necessary to support joint political action meant to realize human rights. While there are further questions about what sort of political human rights solidarity is best, I conclude that political conceptions are superior to moral ones when it comes to theorizing solidarity. 7.2 POLITICAL VS. MORAL APPROACHES TO HUMAN RIGHTS

Before delving into political conceptions, I will outline the contrasting moral approach to human rights.4 As Alan Gewirth, who takes a moral approach, puts it, “Human rights are a species of moral rights: they are moral rights which all persons equally have simply because they are human” (Gewirth 1982, p. 1). Moral approaches understand the nature and justification of human rights from a substantive, philosophical perspective; the theory is formulated independently of actually existing practices. Based on abstract values, principles, norms, or ideals, moral theories of human rights define rights without drawing on the perspective of positive law or ongoing human rights discourses. Similarly, moral theories need not take the practices of activists, NGOs, and citizens into account. Carl Wellman also expresses a version of the moral approach: “Although there are those who insist that rights are by their nature institutional, I do not find their arguments convincing. I believe that one species of human rights consists of fundamental moral rights that are natural rather than artificial so that their existence and nature does not depend on any legal system or social moral code” (Wellman 2011, p. 3). Normative judgments about human rights can be made regardless of institutional context, on this view. As Charles Beitz explains, these approaches “regard human rights as 4

What I will call the moral approach is sometimes also called the traditional, naturalistic, or orthodox approach.

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having a character and basis that can be fully comprehended without reference to their embodiment or role in any public doctrine or practice” (Beitz 2009, pp. 49–50). Despite moral conceptions’ obvious philosophical interest, their limitations have led philosophers to develop political approaches to human rights. Political approaches have played a significant role in philosophical discussions of human rights since the publication of John Rawls’s Law of Peoples.5 Even worked-out moral theories of human rights will leave many questions about how to structure international legal institutions unanswered. In particular, philosophers have argued that moral theories of human rights do not specify who is obliged to protect and support human rights, or how strong those obligations are (see Beitz 2009, p. 65). Moreover, as Allen Buchanan has emphasized, the fact that all humans have a moral right is neither necessary nor sufficient to justify a corresponding legalized human right (see Buchanan 2013, chapter 2). The prior existence of a moral right is not a necessary condition for institutionalizing a right. Many other justifications are sufficient, such as social cooperation and the protection of minority groups. In addition, just because some moral right exists – a right to be respected, for instance – we needn’t legalize it. Whatever virtues moral conceptions have on their own, such views are inadequate for answering concrete questions about structuring human rights law. This abstract approach may also fail to provide guidance when it comes to human rights that do not demand legal institutionalization, if such rights, in fact, exist.6 In an attempt to answer such concrete questions, political conceptions view human rights in terms of their function within actual institutions and practices. Whereas moral conceptions are practice- and institution-independent, political conceptions are practice- and institution-dependent. They “[take] the doctrine and practice of human rights as we find them in international political life as the source materials for constructing a conception of human rights” (Beitz 2009, p. 102). This methodology does not simply accept the status quo of international law, however. Rather, theorists develop standards of practical evaluation based on goals immanent to existent practices. Interpreting a practice in light of such reconstructed standards provides a critical perspective that promises to offer guidance for improvement. As Cristina Lafont puts it, “critical reconstruction that is based on an accurate understanding of [human rights practice’s] 5 6

These approaches have sometimes been termed practical or functional approaches. For an argument that some human rights may be protected best by means other than legal institutionalization, see Sen 2009, pp. 364–366.

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distinctive functions are likely to issue proposals for revision that aim to improve the practice’s ability to reach its own goals” (Lafont 2012, p. 15). Given this methodology, political conceptions aim to provide a way forward where moral approaches reach their limit. Political approaches can connect normative claims back to concrete practice, offering a way to specify rights and obligations. The level of practice dependence in political approaches can vary, however.7 Some political conceptions see particular practices as constitutive of the nature of human rights. Call such views strongly practice-dependent or constitutivist.8 On such a view, there are particular institutions or practices that constitutively embody human rights. Human rights are dependent on practice, insofar as something only counts as part of the human rights project if it is achieved in the context of particular practices or institutions. In contrast, we can also define weakly practice-dependent or practice-informed views. This latter approach also develops ideals, principles, or norms of human rights by interpreting the functions of existing human rights practices and institutions. Practice-informed views do not take such practices or institutions as constitutively necessary embodiments of human rights, though. Instead, a practiceinformed ideal, principle, or norm can be used to evaluate existent practices and institutions to determine whether they are fulfilling their function and, if so, how they might be improved.9 Practice-informed views justify human rights with reference to particular practical-institutional contexts, but allow that human rights practices and institutions at given times may be inadequate. In this respect, they differ from strongly practice-dependent, constitutivist views, which take certain practices or institutions as necessary embodiments of human rights. This brief explanation of the debate between moral and political approaches is not meant to explore all aspects of this ongoing controversy. Instead, I have only aimed to elucidate the motivations behind the development of political conceptions of human rights, as well as to spell out some ways they can be articulated. Theorists of the political conception aspire to develop normative theories dependent on existent practices and institutions, in contrast to the moral approach’s abstract, practice-independent view. 7

8

9

I thank Cristina Lafont and Carlos Pereira Di Salvo for helpful discussion of some of the distinctions and terminology introduced in this paragraph. Those who take a political approach rarely delineate themselves into strongly and weakly practice-dependent views in an explicit way. For an example of a strongly practice-dependent view, see Beitz 2009, and for an instance of weak practice dependence, see Buchanan 2013. For a useful description of the practice-informed political approach, see especially Buchanan 2013, pp. 108–109 and 150–152.

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7.3 THE DEMAND FOR SOLIDARITY

7.3.1 Introducing Solidarity I will ultimately argue that neither political nor moral approaches to human rights can get by without solidarity. Because the word “solidarity” can be defined in so many ways, it is important to outline my own approach to it. I largely follow Sally Scholz who explains, “[solidarity] describes some form of unity (however tenuously the members might be united) that mediates between the individual and the community and entails positive moral duties” (Scholz 2008, p. 5). Those in solidarity commit to a particular group of people or an ideal, principle, or project they support alongside others. This commitment, which often involves affective elements, generates certain duties.10 Solidarity involves mutuality or reciprocity – people or collectives standing alongside one another in unity, ready to support each other in some way. My commitment to exercise more or even to be a better person does not count as solidarity insofar as it does not involve any unity with others or sense of duty to them. People join in such unity based on varied reasons and goals. As such, the obligations or normative constraints that solidarity entails will vary as well.11 Firstly, someone might be in solidarity with others based on their interdependence or cohesion as a group, perhaps with a particular religious, ethnic, or national identity. Secondly, solidarity can involve mutual commitment between individuals, as mediated by the state institutions they rely on to minimize each other’s vulnerabilities. Finally, solidarity can be an oppositional, collective response to injustice and oppression, where people join together to both support a cause and “share a vision for the future” (Scholz 2008, p. 34). These latter two types of solidarity will turn out to be the most relevant in attempts to realize human rights, not the thick forms of interdependence found in the first sort of group solidarity (often seen in contexts like families and cultural groups). Instead, people can join together within existent state institutions to meet their positive obligations to protect one another against standard threats to their rights and interests. They can support and influence institutional frameworks that embody human rights ideals and principles. In addition, people can stand side-by-side to oppose forms of oppression and injustice that threaten human rights. Such political solidarity can occur in a society or across borders. As should be clear, solidarity need not require some thick form of group unity. Solidarity is often understood as reliant upon shared identity or 10

11

As Tommie Shelby explains, solidarity is “a feeling that entails normative constraints” (Shelby 2005, p. 68). Here I draw on the three sorts of solidarity described in Scholz 2008: social, civic, and political.

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sentiments of the sort defended by particular cultural groups or nations.12 This sort of conception is not the exclusive or even the most obvious candidate to support projects meant to achieve human rights. There are much thinner types of solidarity available, which are not so culturally or nationally bound. These can form around shared commitments to the pursuit of justice, to working out political disagreements using particular procedures, or to opposing oppression.13 My reliance on Scholz’s framework for thinking about solidarity enables a broad understanding of how shared commitment and mutual obligation can support human rights. Thick social unity, like that found in communitarianism, is not assumed from the start; other types of solidarity may be better suited for our purposes. 7.3.2 Why Achieving Human Rights Relies on Solidarity People’s willingness to join in solidarity is crucial for achieving human rights. Both human rights activists and those subject to human rights law must exhibit some degree of solidary commitment to human rights ideals. Regardless of one’s methodological approach to human rights, some set of practices and institutions must either (1) embody human rights ideals and principles or (2) serve as a vehicle for attempts to approximate and eventually achieve human rights. To accomplish either goal, at least some individuals or collectives must adopt certain shared commitments and obligations. Actors must monitor and contest relevant practices and institutions, holding those in charge of these practices and institutions accountable. For instance, if a head of state imposes a law that undermines a group’s freedom of religion, the public must rise up to fight for the reinstatement of those rights. Agents must also work together to conserve or transform institutions when it is called for. So if, for example, corporate interests try to interfere with international bodies meant to protect workers’ rights, then civil society actors and public officials must collaborate to fight back against such corrupting forces. At the least, there must be a commitment, especially from states, not to interfere with human rights practices and institutions. Governments ought to refrain from shaping treaties in solely self-interested ways that ignore negative effects on human rights, for example. These activities (or forms of self-restraint) are crucial to achieve the effective – and perhaps legitimate – embodiment of human rights ideals and principles in practices and

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See, for instance, Scruton 1990; Miller 1995; Taylor 1995; and Rorty 1998. See, for example, Brunkhorst 2005; Shelby 2005; Scholz 2008; and Flynn 2014. The forms of solidarity described in Ju¨rgen Habermas’s and John Rawls’s work also allow for solidarity without communitarianism or nationalism.

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institutions. This project cannot be achieved through coercion or appeals to selfinterest alone. To see why, we can look at how activities in support of human rights depend upon forms of solidarity. To insure the integrity of concrete attempts to make human rights a reality, various actors must hold those in charge of relevant practices and institutions accountable, which, in turn, requires these actors’ solidarity. In their discussion of what the legitimacy of global governance institutions requires, Buchanan and Keohane argue for the need for various forms of institutional accountability (Buchanan and Keohane 2006). They indicate a need for both a democratic channel of accountability and a transnational civil society channel of accountability.14 The first sort involves states that meet a certain level of democracy and respect for rights consenting to global institutions. The second involves individuals and groups outside of those global institutions examining, contesting, and influencing them, based on their “legitimate interest” in how such institutions operate (Buchanan and Keohane 2006, p. 432). Such civil society influence has a unique potential to enhance both the legitimacy and effectiveness of human rights institutions (see Scholte 2004). Either channel of accountability will be reliant upon actors who join in solidarity with one another in support of human rights. Through the democratic channels of the state, citizens must appeal to their governments to support and comply with human rights treaties. They will need to join together to force states to consent to valid institutions and rules that embody human rights ideals and principles. Similar exercises of joint power, founded in solidarity, will be needed transnationally to hold global institutions and other mechanisms of power accountable. Groups, both within and across borders, need to be ready to stand together in solidarity in order to influence and shape particular institutional actors for the sake of human rights. Solidarity’s role in achieving accountability cannot be replaced by coercion or appeals to self-interest. If institutions and treaties meant to embody human rights operate with great coercive power, they may be able to accomplish great goods, but they will be difficult if not impossible to keep accountable to stakeholders. Coercion threatens to overcome the channels of contestation that enable accountability, undermining monitoring and contestation as effective methods for institutional accountability. If we rely upon states’ coercive power to keep global institutions accountable, then issues of accountability between governments of unequal power will emerge. Reliance on individuals and groups’ self-interest to maintain institutional accountability is also not viable. Given vast global power differentials (between 14

Not all scholars agree that both channels are called for. The need for some accountability is generally acknowledged, however.

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both groups and nations), self-interest is unlikely to enable the dynamic forms of accountability that legitimate, effective human rights institutions need. Buchanan and Keohane rightly emphasize that, given the existence of moral disagreement and uncertainty, it must be possible to challenge and reshape the terms of accountability.15 If powerful stakeholders act based only on self-interest, the less powerful, whose rights may conflict with the powerful’s interests, will be unable to contest or influence institutions. Such reshaping of institutional dynamics, based on the input of the less powerful, will be suppressed. Additionally, self-interest may not force global actors to forebear “[actions involving] obvious (and foreseeable) violations of the basic human rights of others” (Lafont 2010, p. 207). Since problematic actions may be in powerful agents’ self-interest, additional, principled commitments are necessary to counteract such temptations. Even a contingent confluence of interests between groups or nations allowing for open contestation or effective protection of rights prompts deep normative concerns. For one, less powerful groups’ ability to hold institutions accountable is still subject to the will of the more powerful. As Pettit points out, such a situation is a form of domination (see Pettit 1997; Pettit 2010). To avoid such threats to freedom, we have reason to develop human rights institutions and treaties that maintain their accountability based upon shared normative commitments. We should not rely upon a “balance of forces” of the sort found in systems based on coercion or self-interest (Rawls 2002, p. 44).16 The nature of such a shared normative commitment can vary greatly; it might involve robust moral consensus or agreement on the justifiability of a set of procedures. The relevant agreement might simply be states’ commitment to not violate treaties or interfere with their enforcement.17 The nature and strength of the required commitment will depend on the conception of human rights one subscribes to. The commitment must involve obligations to support forms of accountability and contestation, in particular. The crucial point is that saying accountability demands adopting certain shared commitments and obligations amounts to defending the need for

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As Buchanan and Keohane put it, what constitutes appropriate accountability is itself subject to reasonable dispute, the legitimacy of global governance institutions depends in part upon whether they operate in such a way as to facilitate principled, factually informed deliberation about the terms of accountability. There must be provisions for revising existing standards of accountability and current conceptions of who the proper accountability holders are and whose interests they should represent. (Buchanan and Keohane 2006, p. 427) Here Rawls also distinguishes between these two sorts of stability in his own particular way. For a discussion of the importance of state consent, see Schaffer 2014.

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human rights solidarity. People, groups, or states – whichever are relevant – must stand together and take on obligations related to human rights institutions, whether those involve support, contestation, or self-restraint. While coercion and self-interest may matter to some extent, dynamic forms of accountability require human rights solidarity that avoids domination. Although thus far I have focused on institutions, Charles Beitz notes that there are also informal human rights practices, which I will suggest also depend upon solidarity. Domestic political actors can adopt human rights norms and try to promote them in their own states and international actors can attempt to inform and persuade those in other states to support human rights (see Beitz 2009, pp. 37–42). These practices may fall under the aegis of holding institutions accountable. They may also aim at pressuring individuals or nongovernmental organizations to respect human rights or promote the creation of not-yet-existent human rights institutions. Given the noninstitutional character of such human rights practices, practitioners must develop certain shared commitments and mutual obligations that further their human rights aims. They cannot just depend on previously existing institutional mechanisms, since effective institutional mechanisms are often lacking. Because these political activities have become central to human rights practice, the noninstitutionalized commitments of everyday people, often across borders, will be necessary to accomplish human rights ideals. 7.3.3 Both Moral and Political Conceptions Demand Human Rights Solidarity Any approach to human rights will have to formulate understandings of human rights solidarity. While the need for such a formulation is somewhat clearer in practice-dependent cases, practice-independent conceptions also require corresponding forms of solidarity. For the political conception, the need for solidarity is relatively straightforward. Political conceptions’ ideals, meant as guides for the improvement of human rights practice, must be embodied in practices and institutions, which act as the vehicles for achieving human rights. As I have argued, these practices and institutions rely on corresponding forms of solidarity for support, improvement, or reform, depending on what a political ideal’s conception of solidarity demands in the circumstances. It is less obvious that the moral conception of human rights has a need for solidarity, but it too cannot avoid it. To see why, we can look at James Griffin’s substantive, moral approach to human rights. Although he chiefly provides an abstract theoretical characterization of human rights, the idea of solidarity

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supporting his moral conception is present. He suggests that realizing his view depends upon “agreement directly on values . . . on a particularly deep conception of agency” – an agreement that extends across cultures (Griffin 2008, p. 27). Although his traditional, moral approach to human rights focuses less on practical issues and more on the justification of moral claims, attitude- and affect-based commitment must be present to support his moral ideals. The solidarity Griffin proposes focuses on the moral value of agency, which is at the center of his theory and, hence, is the core object of solidarity in his view. Griffin’s theory’s need for solidarity is not a quirk of his particular view. In general, universalistic demands related to justice and rights make demands on various actors’ practical commitments. Normative moral theory tends to require, at the least, passive noninterference with its ideals, if not active support for those ideals’ realization. G. A. Cohen suggests this point, claiming, “the justice of a society is not exclusively a function of its legislative structure, of its legally imperative rules, but also of the choices people make within those rules” (Cohen 2008, p. 123). He puts forward the idea of an ethos, where normative political principles are not just institutional commitments, but also governing principles of everyday life, influencing individual conduct. His argument critiques Rawls’s formulation of the “difference principle,” which states that distributive inequality is permissible only if it benefits the worst off in a society (Rawls 1971, p. 78). Rawls’s principle suggests inequality is permissible if it creates incentives for the advantaged to be more economically productive, ultimately benefiting the least advantaged in a society. Cohen objects that those with greater advantages act intentionally when they require incentives to be more productive, something for which they should be held accountable (Cohen 2008, pp. 65–68). Insofar as that intentional demand for incentives undermines distributive equality, it cannot be justified interpersonally to those who are disadvantaged. The advantaged cannot reasonably tell the disadvantaged they require an unequal social position in order to engage in social cooperation for mutual advantage. As a result, Cohen concludes that not just formal social institutions but also personal conduct and ethos must embody a commitment to the difference principle. While the particulars of Cohen’s argument are complex and subject to debate, his argument shows how even moral conceptions of human rights must rely on forms of solidarity to support human rights.18 We can apply 18

Cohen defends a particularly demanding form of ethos in his discussion of Rawls, which is a large cause of the debate surrounding his views. Cohen aims for a very strong practical commitment to egalitarianism in everyday life. In my discussion here, I do not mean to suggest that all forms of ethos that normative ideals require should be so demanding, only to defend the need for some form of ethos, demanding or not.

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a similar argument to moral approaches to human rights, at any rate. If a philosopher elaborates a moral theory of human rights, she must intend those for whom such rights are normative to adopt certain corresponding shared commitments and obligations. Moral ideals and principles, such as Rawls’s theory of justice or Griffin’s view of human rights, cannot simply burst into being fully realized without individuals’, groups’, or states’ commitment to make it so.19 Insofar as moral ideals are already realized in practices and institutions, actors must commit to supporting or, at least, not interfering with them. Moreover, any moral conception of human rights must explain what such a corresponding commitment of solidarity entails, in addition to other questions about what normative demands it makes. Any theory of human rights, whether moral or political in its methodology, must address what kind of solidarity it requires. Working out the role of solidarity in the philosophy of human rights sheds light on both the plausibility and normative attractiveness of both the moral and political approaches. 7.4 DISTINGUISHING MORAL AND POLITICAL CONCEPTIONS OF HUMAN RIGHTS SOLIDARITY

In particular, we can ask how the solidarity required by the political approach to human rights is different from that required by moral approaches. I will suggest that we can distinguish between understandings of solidarity that require a normative commitment that is practice-dependent versus those that have a practice-independent focus. These approaches to solidarity correspond to political and moral approaches to human rights, respectively. In general, solidarity is not a self-standing, sui generis ideal, but is what JanWerner Mu¨ller calls a “normatively dependent concept” (Mu¨ller 2007, p. 11).20 Particular conceptions of solidarity are embedded in and dependent upon other normative ideals for their substance. In this current discussion, the relevant forms of solidarity are derived from previously developed conceptions of human rights. The particular content of solidarity – meaning the commitments and obligations it entails – is filled in by the human rights theory in which it is embedded. As a result, solidarity has the flexibility to be incorporated into a multiplicity of theories of human rights. Both moral and political

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While it is unclear whether it makes sense to interpret Rawls’s understanding of justice as “moral,” in the sense I have been using here (as opposed to “political”), Cohen’s reading of Rawls fits best with categorizing it as such. Mu¨ller adopts this terminology from Rainer Forst.

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approaches are capable of developing such embedded understandings of solidarity, albeit in their own distinct ways. Solidarity always has some object: a thing, group, or goal those in solidarity are committed to, around which they develop unity and obligations. Conceptions of human rights determine the object of their corresponding forms of solidarity. If a moral conception of human rights understands human rights in terms of a single value, then its corresponding view of solidarity will make that value its central object. When a political conception of human rights views some practice as a central vehicle for achieving human rights, then the practice and its aims will be the object of that conception of solidarity. 7.4.1 Introducing Political Approaches to Human Rights Solidarity Political approaches understand the normative requirements of human rights as dependent upon actually existing practices. As a result, they formulate corresponding political forms of human rights solidarity with reference to actual practices, as well. The solidarity that goes along with political conceptions involves a commitment to certain institutions and practices as vehicles to pursue human rights. Depending on the particular political conception, one might commit to supporting a social movement or respecting or promoting a body of human rights law. Such vehicles and the function they achieve are the object of solidarity in political versions of human rights solidarity, in many cases. As I will explain, whether the political approach is strongly or weakly practice-dependent affects what counts as the object of solidarity. In general, though, those in solidarity act in ways that maintain or attempt to improve actual human rights regimes and practices. They see themselves as part of a joint, ongoing project embedded in a certain context. The commitments and obligations of an agent who is in human rights solidarity – in the political sense – can vary in several ways. Seeing oneself as part of a joint practice and committing to that as the vehicle for realizing human rights can mean conserving that project’s past accomplishments in their current form. One can fight to maintain accountability within relevant practices, protesting or using one’s vote to keep public institutions from succumbing to special interests, for example. Call this sort of solidarity conservationist. Alternatively, one’s commitment to a practice or institution can mean going beyond – sometimes far beyond – its current concrete instantiations. In this latter case, changes will be necessary to maintain effectiveness and accountability. One might, for example, fight for a radical restructuring of UN decision-making procedures. Call this form of political solidarity

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transformative. On certain political approaches, it may turn out that a practice or institution unable to fulfill its explicit or implicit human rights function should be rejected. This third possibility means rejecting the practice from which a political conception is derived – call this type of solidarity revolutionary. It is important not to conflate these tendencies within political solidarity with right- and left-wing political commitments. Conservationist political solidarity focused on human rights related to workers might involve preserving the labor movement’s accomplishments against challenges. Those joined in such solidarity would fight so-called “right-to-work” laws, for instance, which allow free riding on collective bargaining agreements without paying union dues, ultimately weakening labor power. Those on the left will, generally, oppose such laws, which involves a straightforwardly conservationist type of solidarity. Similarly, right-wing groups can join together in transformative political solidarity to make social institutions conform more closely to free market ideals. Finally, one could adopt revolutionary commitments in order to overturn a regime that conflicted with traditional left- or right-wing values. Political solidarity can involve a mixture of these tendencies. Such solidarity’s normative commitments can focus on multiple objects and aims. What solidarity’s normative commitments prescribe relative to these objects and aims depends on the principles and ideals of whatever political conception of solidarity guides us. A political conception of human rights solidarity may focus on conserving certain existent practices, progressively transforming other ones, or even overturning them. The potential vehicles for human rights that can serve as objects of political solidarity are various, as are the attitudes those in solidarity hold toward those objects. Whatever political conception of human rights is chosen will prescribe certain normative commitments – focused on particular practices and institutions – and advocate forms of solidarity built around them. As I will discuss later, strongly and weakly practice-dependent approaches have different possibilities open to them when it comes to solidarity. The former can only take on conservationist and transformative approaches, while the latter also has revolutionary options available. 7.4.2 Introducing Moral Approaches to Human Rights Solidarity Moral conceptions of human rights solidarity, on the other hand, do not have concrete objects and aims like those found in political human rights solidarity. Their practice-independence is reflected in the solidarity they involve. In such solidarity, people’s attitudes and affects support normative commitments to abstract principles and ideals, rather than concrete practices and institutions.

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To see how a moral conception of human rights solidarity might look, we can once again turn to James Griffin’s theory. The distinguishing feature of a moral conception of human rights solidarity is that its objects and aims are not formulated with reference to particular practices or institutions. Those in solidarity focus, instead, on the normative principles and ideals of their preferred moral theory of human rights. In Griffin’s theory, the object of solidarity is the protection of personhood, which for him involves autonomy, a minimum provision of goods, and certain liberties (Griffin 2008, p. 33). This understanding of solidarity does not entail any particular commitment to concrete institutions, groups, or practices meant to promote human rights, such as particular NGOs or global legal conventions. Nor does its normative content refer to these particular practices and institutions in a determinate way. Instead, adopting this moral form of solidarity means committing to protecting personhood. The concrete means needed for that end are undefined. The appropriate practical vehicle for achieving human rights is unclear, as is the sort of accountability those in solidarity should demand. Griffin does work out some of the applications of his moral, personhoodbased theory of human rights, however, which can be used to spell out a corresponding understanding of solidarity.21 Applying a moral theory of human rights’ principles and ideals does not make it any less an instance of the moral approach. Moral approaches are not forbidden from discussing existent practices and institutions. Rather, they can point to where existent institutions diverge from the theory’s normative requirements, both in overshooting and undershooting what it demands. Griffin suggests the UN Declaration is overambitious in demanding periodic holidays with pay, but thinks the Declaration’s suggestion that some people deserve welfare rights more than others is too ungenerous (Griffin 2008, p. 186). That is, moral human rights solidarity’s abstract normative commitments can be further spelled out to indirectly lead to a commitment to particular, concrete practices and institutions. With more work, moral conceptions can specify potential vehicles for human rights. This “spelling out” and application is a separate theoretical endeavor from articulating the moral approach’s core human rights ideals, however. As a result, what moral conceptions are to be applied to is more indeterminate than with political conceptions, which already involve a reference to the practices and institutions to which they apply. Theorists like Griffin need a picture of human rights solidarity in order to 21

See Griffin 2008, part III. The way he applies his framework is very general, however. He takes this tack because he believes rights must be universal in a very strong sense. See Griffin 2008, p. 38.

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fully spell out the commitments and obligations their moral conceptions of human rights require in order to be achieved, though. Here, then, we have two contrasting approaches to human rights solidarity. Regardless of one’s methodological approach to human rights theory, I have suggested that understanding human rights requires developing a theory of human rights solidarity. The alternatives at issue disagree over whether the object or aim of such solidarity ought to refer directly to particular practices and institutions or not. This question has both theoretical and practical import; answering it will help clarify what kind of solidarity a commitment to human rights entails. Moreover, if one of the two views of solidarity is superior, this will offer us some reason (although perhaps not a decisive one) to prefer one methodological approach to human rights over the other. To the question of which form of solidarity we ought to prefer I now turn. 7.5 THE LIMITATIONS OF POLITICAL CONCEPTIONS OF HUMAN RIGHTS SOLIDARITY

In the following sections, I speak generally about political and moral human rights solidarity, rather than evaluating each variant of these broad categories in turn. There are broad differences in how both theories of solidarity determine their object of normative commitment, making such generalization acceptable. I will investigate potential downsides and advantages of both approaches, looking at their overall shape to see what boundaries they have when it comes to formulating understandings of solidarity. 7.5.1 Political Conceptions of Human Rights Solidarity Need Not Be Conservative To begin, I look at what might be said of political solidarity, given its focus on practice-dependent objects and aims of solidarity. I have already alluded to how to address the worry that practice-dependent political conceptions of human rights are overly conservative. This concern is natural. If solidarity’s demands on individuals, institutions, and practices are in some way contingent upon those very institutions and practices, then it may seem like holding those things fixed is required. It might seem like a political approach makes it impossible to require serious changes of existent institutions. Both sorts of political conception – the strongly practice-dependent constitutivist approach and the practice-informed approach – can be normatively committed to either conserving or progressively transforming existent practices

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and institutions. If a practice or institution can perform its function, as understood by some political conception, then that conception will advocate a commitment to conserving that practice or institution. This will be true for both sorts of practice-dependent view. Political conceptions must not be confused with forms of conventionalism, though, where actually existing states of affairs are held completely constant. They may call for transforming the practice that is the object of solidarity. Political views of human rights solidarity aim to develop a normative commitment to whatever ideals human rights institutions and practices aim at, not a commitment to the status quo regardless of whether it meets those ideals. First, we can look at how a constitutivist political approach might come to advocate a normative commitment to transforming some practice or institution. Constitutivists think human rights cannot be achieved outside of an existing, historically specific practice or institution. If some practice or institution is constitutively necessary for the achievement of some ideal, then that ideal is strongly practice-dependent. For instance, hitting a home run is impossible outside the historically specific sport of baseball. Meeting the standard for hitting a home run depends on the various rules and practices that make up that sport. It is also possible that some, or even all, human rights principles, ideals, and norms are only achievable – in a constitutive sense – via actual historical institutions and practices or something that develops out of them. That is, one might think human rights constitutively emerge from a specific historical moment and context, even if they aim at the universal protection of all human beings. As a result, when we commit to human rights, we commit to a particular historical project, one that arises in a distinct environment. On this view, were a universalistic political project to have emerged from a different institutional or practical background, we could not consider it human rights; it would be something else. Nonetheless, the actual instantiation of the human rights project in existent practices or institutions might contingently fail to fully perform the function the constitutivist thinks they should. In this case, the theorist will argue we should stay committed to the practice or institution as the necessary vehicle for human rights, but that we must transform it to remedy its failings. Next, we can examine why a practice-informed political approach might support transformation of existent practices or institutions. This conception’s justification for a transformative commitment will look similar to that found in constitutivist approaches that advocate transformation of existent practices or institutions. The only difference will be that a practice-informed view does not think any particular practice or institution is constitutively needed to achieve human rights. Instead, this view treats certain practices or institutions as highly

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significant or even contingently necessary for pursuing human rights. To develop its political conception of human rights, this view interprets these practices or institutions’ functional roles. A political conception can direct us to develop a normative commitment to these particular elements of political and legal practice, given their centrality or importance to human rights. If, however, those practices or institutions have contingent failings, solidarity may mainly center on transforming and improving practices so they can better perform their functions. 7.5.2 Political Conceptions of Human Rights Solidarity and Revolutionary Politics While constitutivist and practice-informed political approaches can each support both conservationist and transformative commitments to political practices, only a practice-informed political approach can permit revolutionary solidarity. Revolutionary solidarity involves the view that we must overturn current human rights practices and institutions due to their serious inadequacies as vehicles for the human rights project.22 Such solidarity must be based on a conception of human rights that is unrealizable via existent practices or institutions, either in their current state or in a future, improved form. This view suggests something radically different is needed to achieve human rights. On such a view, solidarity must involve a commitment to bringing about such sweeping changes. Strongly practice-dependent, constitutivist political approaches must reject such revolutionary solidarity. The reason for this rejection is straightforward. Constitutivists think some existent practice or institution is constitutively necessary for realizing human rights. This view is incompatible with adopting the revolutionary commitment to completely replace existent institutions. Constitutivists think some currently existing practice must be the vehicle for achieving human rights – but revolutionary solidarity means committing to the view that no such practice can adequately act as such a vehicle. Weakly practice-dependent views are compatible with revolutionary solidarity, however. A practice-informed view could examine the most significant human rights practices and institutions and interpret them as having

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To be clear, adopting revolutionary solidarity wouldn’t require advocating violence, just a radical shift away from the status quo, which wouldn’t be possible without current global human rights practices being abolished. An advocate of this view might hope the abolition would occur peacefully.

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some worthwhile function meant to embody human rights ideals and principles. Despite being a useful tool for reconstructing what human rights mean, actual practices and institutions just may not be able to fully realize them. One might be tempted by such a view because of worries that current practices and institutions are too connected to neoliberal capitalism, for instance. Alternatively, one might believe current institutions and practices of human rights are too closely tied to the existence of the nation-state, which must be abolished for human rights to truly be protected. If a practiceinformed approach takes this view, it will advocate revolutionary solidarity, in spite of deriving its understanding of what human rights are by interpreting actual practices. Whether or not this revolutionary view is attractive or normatively plausible is beside the point. What is clear is that constitutivist political conceptions of human rights solidarity are incapable of incorporating such a revolutionary position. As a result, revolutionary approaches constitute a boundary these political conceptions of human rights solidarity cannot cross. 7.6 THE LIMITATIONS OF MORAL CONCEPTIONS OF HUMAN RIGHTS SOLIDARITY

In addition, we can look at moral approaches to human rights solidarity and examine their boundaries and limitations. There are questions about what moral forms of human rights solidarity, which do not hinge on existent institutions and practices, might lack or exclude. Those who adopt moral forms of human rights solidarity commit to normative ideals, values, or principles of some sort that they see as central to human rights. These abstract commitments and obligations may elicit a corresponding commitment to existent human rights practices and institutions. Whether this latter commitment emerges, as well as what form it takes, varies based on the particular moral conception one adopts. Because moral conceptions are formulated without reference to existent practices, the way theorists construct corresponding forms of solidarity differs from political approaches. Moral conceptions of human rights solidarity can accept the kind of radical revolutionary understandings of solidarity that strongly practice-dependent political conceptions cannot incorporate. In a further dissimilarity to strongly practice-dependent views, moral conceptions of human rights solidarity cannot commit to any particular practice as constitutive of human rights. And unlike both strongly and weakly practice-dependent views, moral approaches are indeterminate about which concrete practices should serve as a vehicle for pursuing human rights.

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7.6.1 Moral Conceptions of Human Rights Solidarity and Revolutionary Politics Moral conceptions differ greatly from strongly practice-dependent views in their capacity to permit the adoption of revolutionary forms of solidarity. Unlike constitutivist political approaches, moral conceptions understand human rights in terms of universal values, ideals, or principles. If those in solidarity commit to such abstract values, they may determine that no existent practice suffices to achieve human rights. Someone who adopts a moral conception of human rights solidarity may even take existing practices and institutions to obstruct this goal. As a result, their practical commitment may involve a determination to undermine and overturn the current regime of human rights practices, hoping to replace them with something else. The potential for moral conceptions of human rights to foster revolutionary commitment is not unique. Weaker practice-dependent views also allow revolutionary forms of solidarity, because both practice-independent and weaker practice-dependent views do not designate any practice or institution as constitutive of human rights. 7.6.2 Moral Conceptions of Human Rights Solidarity, Particularity, and Joint Action Moral conceptions of human rights solidarity have a different relationship to particular, concrete objects than either strong or weak practice-dependent views, though. Moral conceptions can support derivative kinds of solidarity that make existent practices and institutions their object. A moral conception alone is insufficient to determine these concrete commitments, though. Separate judgments about the proper vehicle of human rights are also needed. Giving particular commitments of solidarity a secondary role creates indeterminacy about how joint action, supported by solidarity, should occur. In contrast to moral conceptions, both strong and weak practice-dependent views articulate a potential object of solidarity – their human rights ideals, norms, or principles refer to existent practices or institutions. They designate a vehicle for the human rights project. Such designation indicates what a political conception applies to – even if, as with some weakly practicedependent views, applying the normative ideal or principle may lead to a revolt against existent practices. Political conceptions tell us what particular practices or institutions they are meant for, by virtue of being formulated in relation to concrete parts of social life.

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Moral conceptions, by definition, do not determine the practices or institutions to which they apply (see Sangiovanni 2008). Instead, their normative principles and corresponding forms of solidarity abstract from the concrete particulars of human rights practice. A further judgment can then be made about what practices or institutions a moral conception applies to. Just as Griffin evaluates existent human rights law in light of his theory, those adopting moral theories of human rights can commit to or reject actual practices as part of a corresponding conception of solidarity. Existent practices may appear as potential vehicles for pursuing human rights, in line with a given moral conception of such rights. If so, then those in solidarity can determine if conservationist or transformative commitments to existent practice are called for. These determinations are secondary to core, abstract moral conceptions of human rights and human rights solidarity, though. To be clear, my conclusion is not merely that applying human rights ideals or principles requires judgment; that claim is trivially true. Normative theories, regardless of methodology, do not apply themselves, but must be applied by those who adhere to them. Rather, my argument focuses on solidarity. I am pointing out that moral conceptions leave open whether there is a concrete, particular object of solidarity, a vehicle for realizing human rights-related goals. And if various practices or institutions for pursuing human rights are available, then which of these should act as a vehicle for human rights – as an object of human rights solidarity – is indeterminate, too. This indeterminacy separates moral conceptions from practice-dependent views. This difference raises a potential limitation of moral conceptions when it comes to solidarity. One might worry about how to incorporate loyalty into such moral solidarity. This criticism, Jan-Werner Mu¨ller explains, has been applied to constitutional patriotism, a form of solidarity popularized by Ju¨rgen Habermas, among others. Constitutional patriotism imagines solidarity as a commitment to a shared legal project that allows people to disagree on free and equal terms. Mu¨ller, who sympathizes with constitutional patriotism, explains that opponents of this view of solidarity allege that, “there is no reason to identify with any particular polity” as a constitutional patriot (Mu¨ller 2007, p. 5). Such solidarity’s universalism undermines loyalty to particular political formations, critics contend. They argue that constitutional patriots lack reasons to commit to their polity’s attempt to create a flourishing constitutional project, rather than any other. Without judging this critique’s adequacy as an objection to constitutional patriotism, I will press a similar objection against moral conceptions of human rights solidarity. Because it is unclear which practices moral conceptions of human rights solidarity apply to, doubts about how loyalty could function

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within such a conception arise, similar to those voiced by constitutional patriotism’s critics. These approaches’ abstract universalism makes it hard to derive a determinate form of solidary commitment to concrete practices in the real world. If I commit to the value of human rights, interpreted as Griffin interprets them, for instance, which particular institutions I should try to realize my ideals through is still unclear. Where to seek accountability through joint action, supported by solidarity, is uncertain. Moral approaches’ methodological exclusion of particularity creates puzzles about what practices one should commit to, if any. Seeking loyalty or fidelity to particular practices of human rights is more than just a demand for arbitrary, chauvinistic commitment to particular institutions in one’s pursuit of human rights. Political solidarity involves taking on and identifying with particular institutions as the vehicle for a shared project of pursuing human rights. Insofar as such fidelity and commitment matter for realizing human rights, a conception of solidarity’s failure to include them is problematic. Moral conceptions’ inability to incorporate such determinate commitment, by virtue of their practice-independence, leaves open whether those in solidarity pursue human rights via states, global governance, NGOs, or other informal practices. One can easily shift between commitments to different practices and institutions or conclude that no existent institutions or practices are up to the task. If two institutions are equally well suited to accomplishing the goals of one’s moral conception of human rights, it is unclear why one would pursue one’s ideals in one institution, rather than the other. Moral solidarity offers no way to make such a determination. This inability means that those who take on such solidarity lack a firm foundation for shared political action. To take such action, one needs shared institutions or, at least, informal practices through which one pursues goals. If people adopt a particular strain of political solidarity, they have a roughly common interpretation of their context and a commitment to pursuing a particular common project with others. Moreover, they take some established political practices and institutions to serve as a vehicle for realizing the human rights ideals to which they are committed. Those ideals are themselves articulated with reference to the practices and institutions in which they are pursued. The problem with moral conceptions is that they are unable to incorporate a commitment to a public project that actors can take on – a project where, within the same context and institutions, those in solidarity can pursue human rights together. Sharing abstract values and ideals, as those in moral human rights solidarity do, can be a significant kind of bond between people. Those who share this bond may have deeply differing understandings of their

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surroundings and obligations, however.23 They may be committed to very different vehicles for implementing their abstract ideals – or, potentially, they may think no practical means for such implementation exist. The indeterminacy of moral conceptions of human rights solidarity with respect to these issues creates serious gaps. The central reason human rights solidarity matters is its role in supporting joint action to realize human rights. How to connect moral conceptions of solidarity to such joint action is unclear, in contrast to political conceptions of solidarity. There are potential flaws affecting moral conceptions of human rights solidarity, then, which stem from its practice-independent commitment to abstract, general ideals, rather than particular practices and institutions. This conception’s inability to incorporate determinate commitments to particular institutions and practices as vehicles for supporting human rights weakens its capacity to support joint political action. Since those in moral solidarity may interpret their context radically differently and commit to different practical political projects (or none at all), such joint action may be impossible. 7.7 CONCLUSION

When it comes to offering a conception of solidarity, then, moral approaches are limited in ways political conceptions are not. Human rights make demands of actors to develop certain forms of solidarity as part of their realization. Moral conceptions of human rights solidarity provide only an abstract object of solidarity. Although it is possible to develop secondary commitments to institutions or practices as vehicles for human rights, moral conceptions do not determine any particular vehicle. As a result, these views lack a clear picture of the solidarity necessary to underpin joint action aimed at supporting or bringing about human rights practices and institutions. Moral conceptions’ failure to support adequate fidelity to particular institutions and/or practices makes them a poor basis for joint action to further human rights. Working together to support the realization of human rights requires such shared commitments, as well as common interpretations of one’s practical context. By explicitly determining a vehicle for realizing human rights, political conceptions designate a venue for pursuing human rights. We can then ask what sort of joint action to undertake and, in the case of weakly 23

Charles Mills points out that agreement about abstract normative ideals is wholly consistent with deep disagreement over how to put those ideals into practice, as well as how to interpret one’s socio-political context. See Mills 2008, p. 1383.

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practice-dependent views, we can ask if such joint action is possible in our practical context or whether revolutionary solidarity is necessary. It remains to be seen if strongly practice-dependent or weakly practicedependent political views of solidarity are superior, however. Weakly practicedependent or practice-informed views seem to be more flexible, by virtue of allowing for revolutionary forms of solidarity. Many are skeptical of such revolutionary solidarity’s uncompromising vision. It seems utopian and reliant upon an especially difficult to achieve consensus. While more must be said to fully evaluate such solidarity, weakly practice-dependent views’ inclusion of such solidarity does not strongly favor them over strongly practice-dependent views. Although I conclude that political conceptions of human rights solidarity are superior to moral conceptions, distinguishing between the various advantages and disadvantages of particular political conceptions requires more work. My arguments provide a reason to favor political conceptions of human rights, as well as a reason to engage in further research about human rights solidarity within this paradigm. If what I have argued is correct, the political conception’s approach to solidarity counts in its favor, while practiceindependent, moral views are problematic. This conclusion does not settle the debate between these two methodologies once and for all, however. There may be reasons that ultimately favor moral conceptions of human rights over political ones, unrelated to solidarity. Moreover, there may be profitable things to learn from both approaches, depending on the particular aspect of human rights one intends to understand. I only suggest that political conceptions have an overall superior way to view solidarity – and that practiceinformed versions are more flexible than constitutivist ones. This conclusion indicates that human rights theorists, in particular those sympathetic to political conceptions, must develop worked-out understandings of human rights solidarity. Formulating theories in practice-dependent terms promises insights into what commitments the pursuit of human rights demands, as well as what attitudes and affects are needed to maintain such commitments. BIBLIOGRAPHY Beitz, C. (2009) The Idea of Human Rights, Oxford: Oxford University Press. Buchanan, A. (2013) The Heart of Human Rights, Oxford: Oxford University Press. Buchanan, A., and Keohane, R. O. (2006) “The Legitimacy of Global Governance Institutions,” Ethics and International Affairs, vol. 20 no. 4, pp. 405–437. Brunkhorst, H. (2005) Solidarity: From Civic Friendship to a Global Legal Community, Cambridge, MA: MIT Press.

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Cohen, G. A. (2008) Rescuing Justice and Equality, Cambridge, MA: Harvard University Press. Cohen, J. (2010) “Minimalism about Human Rights: The Most We Can Hope For?” in The Arc of the Moral Universe, Cambridge, MA: Harvard University Press, pp. 319–348. Flynn, J. (2014) Reframing the Intercultural Dialogue on Human Rights, New York: Routledge. Gewirth, A. (1982) Human Rights: Essays on Justification and Applications, Chicago: University of Chicago Press. Griffin, J. (2008) On Human Rights, Oxford: Oxford University Press. Lafont, C. (2010) “Accountability and Global Governance: Challenging the State Centric Conception of Human Rights,” Ethics & Global Politics, vol. 3 no. 3, pp. 193–215. (2012) Global Governance and Human Rights, Amsterdam: Van Gorcum. Miller, D. (1995) On Nationality, Oxford: Oxford University Press. Mills, C. (2008) “Racial Liberalism,” PMLA, vol. 123 no. 5, pp. 1380–1397. Mu¨ller, J. (2007) Constitutional Patriotism, Princeton: Princeton University Press. Pettit, P. (1997) Republicanism: A Theory of Freedom and Government, Oxford: Oxford University Press. (2012) On the People’s Terms: A Republican Theory and Model of Democracy, Cambridge: Cambridge University Press. Rawls, J. (1971) A Theory of Justice, Cambridge, MA: Harvard University Press. (2002) Law of Peoples, Cambridge, MA: Harvard University Press. Raz, J. (2010) “Human Rights without Foundations,” in Besson, S. and Tasioulas, J. (eds.), The Philosophy of International Law, Oxford: Oxford University Press, pp. 321–337. Rorty, R. (1998) “Human Rights, Rationality, and Sentimentality,” in Truth and Progress, Cambridge: Cambridge University Press, pp. 167–185. Sangiovanni, A. (2008) “Justice and the Priority of Politics to Morality,” The Journal of Political Philosophy, vol. 16 no. 2, pp. 137–164. Schaffer, J. K. (2014) “Legitimacy, Global Governance, and Human Rights Institutions: Inverting the Puzzle,” in Føllesdal, A., Schaffer, J. K., and Ulfstein, G. (eds.), The Legitimacy of International Human Rights Regimes, Cambridge: Cambridge University Press, pp. 212–242. Scholte, J. A. (2004) “Civil Society and Democratically Accountable Global Governance,” Government and Opposition, vol. 39 no. 2, pp. 211–234. Scholz, S. (2008) Political Solidarity, University Park: Penn State University Press. Scruton, R. (1990) “In Defence of the Nation,” in Dooley, M., The Philosopher on Dover Beach, Manchester: Carcanet, pp. 299–328. Shelby, T. (2005) We Who Are Dark, Cambridge, MA: Harvard University Press. Sen, A. (2009) The Idea of Justice, Cambridge, MA: Harvard University Press. Taylor, C. (1995) “Cross-Purposes: The Liberal-Communitarian Debate,” in Philosophical Arguments, Cambridge, MA: Harvard University Press, pp. 181–203. Wellman, C. (2011) The Moral Dimensions of Human Rights, Oxford: Oxford University Press.

8 When the Practice Gets Complicated Human Rights, Migrants and Political Institutions* Jelena Belic

8.1 INTRODUCTION

The triad of terms in the subtitle may make it sound as if this chapter will be introducing quite a complex argument. Indeed, it may appear to take a lot of argumentative work to connect human rights, migrants, and political institutions. Yet, the argument presented in this chapter is not a complex one. On the contrary, it builds on a simple and broadly shared intuition that human rights are rights of all human beings, including migrants. In this chapter I set out to explore the implications of universality of human rights for conceptualizing their political role. In the recent debate concerning the nature and function of human rights, more and more voices argue that a theory of human rights needs to account for the political role human rights play in practice. Two aspects of that role are particularly salient in these discussions. Namely, human rights not only constrain the states’ conduct but may also provide pro tanto reasons for an international intervention (Rawls 1999; Raz 2007; Beitz 2009). By defining human rights as a necessary condition of state legitimacy, this view focuses on the human rights of those residing within states’ borders and the correlated duties of their own states. However, this view does not seem to capture well the complexity of contemporary human rights practice. For, if we take seriously universality of human rights, then their political role cannot be narrowed down to the relation between states and their citizens, but also needs to explain the relation between individuals and all political *

I have significantly benefited from discussing the earlier versions of the chapter with Zoltan Miklosi, Andres Moles, Janos Kis, Johan Karlsson Schaffer, Luise Katharina Mu¨ller, Christian Barry, Bob Goodin, Reidar Maliks, and Laura Valentini.

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institutions (Peter 2013). In this regard, the human rights of migrants seem to be a good litmus test. It is ordinarily thought that individuals are morally entitled to human rights irrespective of the place they find themselves: ceteris paribus, residing out of the country of one’s nationality should not affect her human rights entitlements; but given the way states often treat migrants, often it does. Yet, if we accept that human rights are universal as well as claimable, then we need to clarify in what sense the human rights of migrants are claimable against foreign states. Considering this aspect of the claimability of human rights is important for two reasons. First, the current forcible displacement crisis shows how states too easily trade off the human rights of migrants for rights of their citizens. I call this the trade-off problem. This kind of trade-off decreases a normative significance of the human rights of migrants, which further questions universality of human rights as such. Therefore, any conception of human rights that considers them universal has to make the rights of migrants and those of citizens compossible. Second, thinking about claimability of the human rights of migrants against foreign states can also reveal a critical force of human rights, and help us evaluate existing practice accordingly. The chapter proceeds as follows. First, I describe the approach I am taking here as a version of the moral conception. Second, I explain what kind of challenge is raised by the relation between migrants and states. I then focus on universality of human rights and show how it is reflected in their current political role. In the fourth section I undertake a threefold task. First, I introduce distinction between human rights as external reasons, i.e. common humanity, and as deliberated internal reasons, i.e. reasonable acceptability. In the subsequent two sections I show why human rights taken as external rather than as deliberated internal reasons can better address the trade-off problem. In the end, I draw implications for conceptualizing the relation between migrants and states. 8.2 HUMAN RIGHTS: MORAL AND/OR POLITICAL?

Let me begin by describing a theoretical landscape and situating the approach I will take here. Human rights appear to have a dual nature. On the one hand, they are moral entitlements of all human beings possessed in virtue of common humanity. On the other hand, human rights are political in a sense that they place constraints over political institutions’ conduct. Recently, philosophers have started conceptualizing these two aspects of human rights, i.e. moral and political, in a way that makes them mutually exclusive. The moral conception holds that human rights are moral rights that individuals hold independently from the existing institutional arrangements (Simmons 2000;

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Griffin 2008). The political conception takes the opposite way by identifying the practice as the source of normativity of human rights. Consequently, it defines human rights in terms of the role they play in giving reasons for actions in a global political discourse (Rawls 1999; Raz 2007; Beitz 2009). However, conceptualizing the moral and political aspects of human rights as mutually exclusive threatens to rob both conceptions of their explanatory force. The moral conception is often accused of being unable to explain a distinctive role human rights play against institutions, while the political conception is said to be incapable of explaining why we have the rights we have. In the more recent literature on this matter, philosophers started taking the “middle ground” approach. For instance, the structural pluralist account attempts to preserve the moral nature of human rights, while accounting for its role against political institutions as the primary duty bearers (Barry and Southwood 2011). A similar approach is also taken by those arguing that the political and the moral conception are in fact complementary, and we need to combine them if we want to understand contemporary human rights practice (Gilabert 2011). The middle ground approach is also favored by the freedom-centered view, which grounds human rights in Kantian conception of the innate right to freedom and hence defines political institutions as constitutive of human rights (Valentini 2012). All these approaches seem successful in reconciling the moral and political aspect of human rights. Importantly, neither is committed to the view that it is the states alone that should be considered the primary duty bearers. However, this cannot be the whole story – the point is not only to show that human rights as moral rights are in fact consistent with political institutions as the primary duty bearers, but also to explain distinctive political implications human rights so understood may have. This is important since it can help us not only to better understand the role human rights play, but also to fully grasp their critical potential. I take on that task here. More specifically, I will defend a version of the moral conception that articulates political implications of human rights taken as moral rights, and based on this offers a normative account of the role the human rights of migrants play against foreign states. I will start making my case by describing a challenge that the human rights of migrants raise for states. 8.3 MIGRANTS AND STATES

Migrations are a persistent feature of the world that raises a set of contestable issues concerning the relation between states and foreigners.1 The current 1

To be sure, individuals come into contact with foreign states even when they reside within their home states by virtue of being affected by the states’ foreign policies. However, addressing this

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unprecedented displacement of people the world is facing reveals a need for a critical assessment of existing practices as well as a proper specification of the relation between migrants and different kinds of political institutions. The number of international migrants has reached 244 million in 2015. This figure includes almost 20 million refugees (UN International Migration Report 2015). The situation raises a need to identify what human rights migrants are entitled to and consequently, how they should be treated by the foreign states.2 For instance, should economic migrants have the same status as refugees? Are there justifiable limits to a number of refugees that a receiving country can accept? Can foreign states treat migrants however they find appropriate? The current refugee crisis shows that this indeed can be the case since rights set forth by international conventions are often set aside even by law-abiding states. In other words, the states too easily trade off the human rights of migrants for those of their citizens. I have already identified this as the trade-off problem. The trade-off problem appears whenever governments, in the name of legitimacy-related considerations owed to its citizens, downplay claims of migrants. To be sure, we can question the governments’ rhetoric that rights of citizens clash with rights of migrants, but that would be a too easy task to do. Here I take the trade-off at its face value, and consider ways in which it can be constrained. The trade-off problem raises two morally pressing questions. First, in what sense do migrants have human rights? Second, if migrants have human rights, in what sense are they claimable against foreign states? Let me emphasize that I am focusing on a generic category of migrants, meaning all those that cross international borders for whatever reason. While different categories of migrants, e.g. refugees and economic migrants, are entitled to different sets of legal rights, what they have in common is entitlement to at least minimal human rights. Since in the chapter I aim to articulate possible political implications of universal human rights, these differences in legal entitlements do not affect my argument. Even more, to focus on the way states treat refugees would only amount to criticizing states for violating international refugee law. The point I want to make here is more general, for it aims to offer a normative account of such treatment able to

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issue would take us too far from the present discussion, so I leave it aside for now. For the seminal discussion of the problem cross-border affectedness creates for territorially limited demos, see Robert E. Goodin 2007. “Enfranchising All Affected Interests, and Its Alternatives,” Philosophy and Public Affairs 35/1: 40–68; for the reply showing that such affectedness need not entail entitlement to rights of participation, see Zoltan Miklosi 2012. “Against the Principle of All Affected Interests,” Social Theory and Practice 38/3: 483–503. There is a growing body of law setting forth rights of migrants, the most important being “International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,” 1990.

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address any trade-off between the human rights of migrants and those of citizens, irrespective of the particular situation of these migrants. First, if human rights are understood as weighty claims and as such “generally suspect” to trade-offs (O’Neill 2015, p. 73), and if on the other hand, the human rights of migrants are so easily traded off, it makes one wonder if migrants have human rights at all. However, one can object here that the human rights of migrants are different from the rights of citizens and that the latter surely have priority. Indeed, legally speaking, states parties to international conventions undertake obligations to primarily protect rights of their citizens. However, while citizenship rights normally incorporate human rights, they do not exhaust it. For instance, all persons have a claim against torture whether or not they are citizens of a state concerned. Therefore, while citizens are entitled to citizenship rights, human rights, on the other hand, are universal entitlements of all human beings. To ignore this point would amount to identifying human rights with rights of citizenship, in which case one could wonder why we need a category of human rights at all. The trade-off problem is distinctive in one more respect. Namely, the human rights of migrants are often set aside for the sake of maximizing interests of citizens. For instance, governments often invoke reasons of security or those of protecting welfare rights of their citizens to justify strict immigration policies. Leaving aside empirical controversies underpinning such rationale, what this shows is that such aggregation of the citizens’ interests easily outweighs individual claims of migrants. Yet, this goes contra broadly shared intuition that persons do not lose their human rights once they cross international borders. Therefore, if we want to show that migrants are, just as all other human beings, entitled to human rights, we need to explain in what sense these rights are claimable against foreign states. To conceptualize the claimability of the human rights of migrants we need to start from the political nature of human rights. Namely, human rights are considered political by virtue of constraining states’ conduct. Since state institutions are “inescapable” and heavily shape individual lives, human rights impose limits on them (Valentini 2012a). If the coercive impact states’ institutions have over individuals residing within their borders is what explains the political nature of human rights, one can argue that the same holds for those attempting to enter. Indeed, civic boundaries are instances of force that is exercised over both members and nonmembers. This kind of coercion is inescapable for all those attempting to enter a foreign state (Abizadeh 2008). If this argument is sound, then we have to start thinking in what sense human rights of migrants can serve as evaluative criteria for states’ institutions. Is it plausible to argue that violations of the human rights of migrants can pro tanto

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justify intervention the same way it does in a case of the rights of citizens? If not, why not? Given that the human rights of migrants are a subset of the rights of all human beings, to answer this question we first need to examine the political implications of universal human rights. 8.4 UNIVERSALITY AND POLITICAL ROLE OF HUMAN RIGHTS

It is a broadly shared intuition that human rights are rights of all human beings. While there are disputes over their temporal dimension, the spatial one seems rather uncontroversial – that human beings in all places are entitled to human rights.3 Universality of human rights is reflected in their current political role in three respects including the scope of institutions, the nature of political role, and the nature of justification of human rights. Let me briefly elaborate on each. 8.4.1 Universal Scope If human rights are rights of all human beings, then all human beings have human rights against all political institutions. We normally do not think that individuals lose their human rights when they leave the state of their citizenship.4 Yet, one may object here that a person surely has a different claim against his or her own state and against other states. In support of this view, one can

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Philosophers disagree whether human rights are timeless, as those grounding human rights in humanity seem to be committed to, or they are synchronically universal, which follows from grounding human rights in contemporary practice. The first view is attributed to the moral conception, while the second is shared by the political conception. Even though I am not concerned with the temporal dimension of human rights here, let me note two difficulties that rooting human rights in contemporary practice seems to face. First, rooting human rights in the practice may not support the claim that human rights are synchronically universal for a simple reason that those synchronically existing may not live under the same social conditions. Second, there are good reasons to include human rights entitlements of future people within the scope of universal human rights since future people are significantly affected by actions of present people. Yet, if social conditions is what matters for human rights entitlements, then future people, meaning those that diachronically exist, have no human rights, even though they are affected by those synchronically existing. This shows how insisting on the present social conditions, rather than actions of those synchronically existing, limits the account of human rights. I am thankful to Bob Goodin for pointing this out. Depending on circumstances, persons crossing borders may lose their citizenship rights. But even this is restricted, since no state is allowed to revoke citizenship rights of persons that have not previously acquired citizenship of another country. The rationale is that no state can make persons stateless. For details, see “Convention Relating to the Status of Stateless Persons,” UNHCR, 1954; United Nations High Commissioner for Refugees, “Convention on the Reduction of Statelessness,” UNHCR, 1961.

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invoke the famous distinction between perfect and imperfect duties. So the argument would be that it is only a claim against one’s own state that gives a rise to perfect duty, since it is clear that the state of one’s citizenship is the duty bearer. On the other hand, it is not clear which states are duty bearers toward migrants and on what grounds they hold these duties. Hence, the human rights of migrants are not rights sensu stricto. However, when it comes to the human rights of migrants, what is morally relevant is not the specification of duty bearers, but its specifiability (Griffin 2008, pp. 108–10). For instance, in order to secure a higher standard of protection for asylum seekers, the European Union (EU) has enacted the so-called Dublin Regulation. The Dublin Regulation sets a hierarchy of criteria for identifying the EU member states responsible for examination of asylum claims in Europe, such as family links or the country of the first entry.5 This shows that allocating responsibilities is a practical, rather than normative question. Accordingly, it does not pose a problem for the normative claim that human rights are rights against all political institutions. 8.4.2 Evaluative Role Universality of human rights is also reflected in the nature of their political role. Human rights serve as evaluative standards for all political institutions in two senses. First, the universal entitlements give us a critical leverage to evaluate existing institutions. For instance, the human rights record of states includes, among the rest, its treatment of migrants. Second, universality of human rights can also help us search for adequate forms of institutional arrangements that can better protect them. One can object here that insisting on the evaluative role of human rights is based on understanding these rights as standards rather than claims. Yet, taking human rights as standards decreases their moral weight in a sense that it shifts the focus from human rights violations to human rights unfulfillment (Valentini 2012). However, the objection is grounded in a narrow understanding of human rights’ evaluative role, for there is no reason to think that emphasizing their evaluative role is necessarily committing one to take human rights as standards only. Indeed, one can argue that institutions are evaluated precisely on the grounds of the extent to which they respect rights as claims.

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Regulation (EU) No 604/2013 of the European Parliament and of the Council; “EUR-Lex – 32013R0604 – EN – EUR-Lex,” 2013.

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8.4.3 The Nature of Justification Finally, universality of human rights is intrinsically related to the way they are justified, i.e. they are to be justified by their significance for right holders. This constrains what kind of justification of human rights is appropriate. For instance, the principle of non-refoulement, which is the bedrock principle of asylum and of international refugee law, holds that state parties cannot send the refugees back to their home state if there is a risk that they will face a persecution. The non-refoulement principle is justified by protecting basic interests of refugees, including their right to life and protection from torture.6 Therefore, it is only if human rights are properly justified that they can play the political role against all political institutions. In sum, universality of human rights means that these are rights against all political institutions, they help us evaluate these institutions and that human rights are justified by their importance for right holders. Importantly, these considerations are not theoretical only, but they also characterize the contemporary practice. These considerations notwithstanding, we could see that the existing practice is also characterized by what I defined as the trade-off problem – that states too easily trade off the rights of migrants for the rights of their citizens, thus decreasing a normative significance of the former. While the existing legal entitlements may give us some ground to criticize such practice, it is not sufficient, for the rights of citizens will always prevail. This reveals a fundamental tension between the rights of citizenship on the one hand and universal human rights on the other. Resolving the tension, however, is a too large task to undertake here. What I intend to do instead is to examine what understanding of human rights can give them more weight. This is important since it will help us conceptualize a political role the human rights of migrants can play against foreign states. In order to do so, I will go back to the debate between the political and moral conception of human rights. 8.5 HUMAN RIGHTS, LEGITIMACY, AND JUSTIFICATION

So far, I have argued that the fact that states too easily trade off the human rights of migrants for those of their citizens creates a problem for a broadly shared view that human rights are rights of all human beings. Therefore, any conception of human rights accepting universal entitlement to human rights has to be able to constrain such trade-offs, meaning that it has to offer an account of human rights such that it gives more weight to the human rights of 6

“UNHCR 1951 Convention and Protocol Relating to the Status of Refugees,” art. 33.

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migrants. This need not necessarily lead to outweighing rights of citizens, but can at least constrain a set of reasons governments can invoke to justify such trade-offs. Clearly, how much weight the human rights of migrants might have depends on the way we understand these rights. Here I will assess which of the two dominant understandings of human rights – the political conception or the moral conception can better address the trade-off problem. 8.5.1 Conceptual Framework To examine which conception can better address the trade-off problem, we need to start from the way they understand human rights. This might appear as an impossible task, since two conceptions of human rights, i.e. the political and the moral one, aim for different things. Namely, the political conception mostly attempts to define human rights, while the moral conception is focused on their justification.7 More specifically, the political conception defines human rights in relation to the role they play in practice. This role is characterized in terms of human rights being a set of necessary, though not sufficient, standards that states should comply with. On the other hand, the moral conception focuses on justifying human rights on practice-independent grounds. While the two approaches might appear impossible to compare, we should bear in mind that even though separate, the role of human rights and their justification are interdependent notions. For, human rights cannot play a role against political institutions unless they are properly justified. Also, features of their political role affect the way we want to justify them. An important part of philosophizing about human rights is to get the relation between their role and justification right. To make a comparison between the political and the moral conception possible, I will use a modified version of Williams’s distinction between “internal” and “external” reasons (Williams 1982). I shall not attempt any discussion of the distinction as such, but will take it at its face value as a useful conceptual tool. The difference between internal and external reasons may be stated as follows. Internal reason: A has a reason to Φ. The proposition is true if and only if A has an aim that will be served by his Φ-ing. External reason: There is a reason for A to Φ. The truth of the proposition is not relative to the agent’s subjective motivational set.8 7 8

I am thankful to Laura Valentini for helping me clarify this. My specification departs from Williams’s idea of external reasons, since for him the validity of the proposition stating reasons for action is conditional upon the existence of agent’s subjective

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I depart from Williams’s distinction in two respects. First, I use external reasons in a form of “ought,” while Williams does not discuss the external reasons in relation to morality. Second, I modify the distinction by introducing two versions of internal reasons. I will call these “actual” and “deliberated” internal reasons. I introduce this modification in order to more accurately capture the political conception’s understanding of human rights. Here is the modified version of distinction: Actual internal reason: A has an actual reason to Φ. Deliberated internal reason: A would have a reason to Φ if he had deliberated from his subjective motivational set. Therefore, while both forms of internal reasons rely on the existence of the subjective motivational set of the agent to Φ, the difference is that in the first case it is the actual reason for A to Φ, whereas in the second a reason to Φ would come as a result of internal deliberation. Let me now apply the distinction to the ways the political and the moral conception understand human rights.9 One can argue that the moral conception takes human rights as the external reasons, i.e. reasons whose validity is independent from a subjective motivational set of agents. On the other hand, the political conception seems to be closer to defining human rights as the deliberated internal reasons, i.e. reasons that agents would endorse had they deliberated from their subjective motivational sets. Defining the political conception this way seems to successfully capture its central components: definitional one (role human rights play in practice) as well as normative one (grounding human rights in interests). In the next two sections I will assess which kind of reasons can give us an account of human rights able to avoid the trade-off problem. One may object that the political conception appeals to the actual internal reasons since it insists that the justification of certain claims depends on their coherence with the practice. This would mean that the political conception mirrors what is known as a sociological approach to legitimacy. The sociological approach draws on the Weberian tradition of insisting on the importance of the perceptions a society’s members share about their states. We count as legitimate in this sense those states that are actually accepted by their

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motivational set. The proposition “There is a reason for A to Φ” cannot be true unless there is the subjective motivation for agent A to deliberate from. However, if deliberation is conducted on the basis of subjective motivation, following Williams, then this is not external reason any more. It follows that propositions stating external reasons are necessarily false. Since I am using external reasons in the form “ought,” I do not consider its validity conditional upon the existence of subjective motivational set. In a case of states, I take that the notion of subjective motivational set applies to its political culture.

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members. However, the sociological approach does not seem to be able to assess legitimacy from a moral point of view since the normative relevance of existing beliefs is difficult to sustain. For, members can be simply mistaken by way of indoctrination or a simple error in judgment (Simmons 1999). If the political conception indeed mirrors the sociological approach, then the same objections can apply to it. Yet, the political conception does not seem to be conventionalist to that extent. For instance, Beitz explicitly argues that the political conception is different from “agreement” accounts of human rights in that the latter derives justification of human rights from an intercultural agreement, while the political conception grounds human rights in interests that are “sufficiently generic that it would be reasonable to expect anyone to recognize their importance” (Beitz 2009, pp. 136–37). I take it that insisting on reasonable expectation of acceptability shows that the political conception proponents would endorse a version of the deliberated internal reasons to explain human rights. 8.5.2 The Political Conception The political conception defines human rights as a sui generis normative practice meaning that it represents a set of norms for a class of agents and that it is broadly believed that these norms should be complied with. Human rights are the normative practice in the sense that we have to have reasons to endorse them as a practice. The method of interpreting the practice aims to provide a non-parochial normative foundation of human rights. More precisely, defining the nature of human rights through interpreting the practice aims to separate the question of the nature of human rights from its content and scope. While the content of human rights may remain a point of dispute, a reference to the role human rights play in the practice, on this view, shows in an uncontroversial way what human rights are. Thus, human rights are rights individuals have primarily against their own states (Beitz 2009, pp. 105–08). Besides playing a role as the legitimating condition of states, human rights may also give pro tanto reasons for the interference by external agents in the case of noncompliance by a state (Rawls 1999; Raz 2007; Beitz 2009). If human rights are to legitimate states then they have to be justified by reasons acceptable to states. As we can see, insisting on the role of human rights as their defining feature allows global pluralism to constrain the justification of human rights. However, the political conception surely does not want to leave human rights entirely dependent upon acceptance by all states. Instead, there is a kind of mutual constraint between the idea of human rights

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and states’ acceptance which I have tried to capture by introducing the concept of “deliberated internal reasons.” As a small reminder, the deliberated internal reasons are the reasons that the agent would come up with by deliberating from the beliefs and motivations he actually has. The reliance on the deliberated internal reasons supposes to yield an account of human rights consistent with different justifications. As one of its proponents argue, human rights are a public reason formulated autonomously from any tradition but yet can reasonably be expected to be shared by adherents of conflicting traditions (Cohen 2006).10 What can human rights so defined say about the trade-off problem? Given its focus on practice, it might appear that the political conception can easily address the trade-off problem. By defining human rights as a necessary condition of a state’s legitimacy, it might seem that it can easily include the human rights of migrants as one of these conditions and by doing so, give us a much needed critical tool to address the trade-off problem. Yet, I do not think this is the case. In the next section I give reasons to support this skepticism. 8.5.2.1 Human Rights as Deliberated Internal Reasons As argued earlier, the trade-off problem illustrates the way states often trade off the human rights of migrants for those of their citizens. Yet, if we indeed think that human rights are the rights of all human beings, we need to come up with an account of human rights such that makes them compossible with the rights of citizens. Here I will offer several reasons for why human rights defined as the deliberated internal reasons cannot achieve this. First, the political conception grounds human rights in universal interests. For example, Beitz holds that human rights protect urgent individual interests against standard threats, most of which are threats by their own governments (Beitz 2009, p. 207). The appeal to universal interests can count as an adequate justification of human rights since it focuses on the significance of rights for right holders. However, there are difficulties in grounding human rights solely in interests, no matter how universal they may be. Namely, interests often go beyond rights, for persons can have interests in things that

10

Recently, it has been argued that the justification of human rights should rely on the principle of inclusion of all, rather than on the idea of “autonomous” formulation of human rights as public reason. The reason for this is that the principle of inclusion legitimizes many forms of existing societies. For this argument see Peter, “The Human Right to Political Participation”; Restated in Fabienne Peter, “A Human Right to Democracy?,” in Philosophical Foundations of Human Rights, 2015, 481–90.

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they have no right to. I can have an interest in person X, but it hardly follows that I have a right to his love. On the other hand, rights also go beyond interests in a sense that persons have rights to things they may have no interest for, such as a right to assemble (O’Neill 2015, p. 72). Furthermore, grounding human rights in interests does not seem able to address the trade-off problem. The reason for this is that the interests of different persons are rarely compossible and so have to be traded off often. Even more, to ground human rights solely in interests would allow the sacrifice of interests of individuals for the sake of maximizing interests across persons (Tasioulas 2015). Therefore, it is not clear in what sense grounding human rights solely in interests would make the human rights of migrants and those of citizens compossible. Second, defining human rights as the deliberated internal reasons, in order to be successful, has to carefully balance between the requirement of relying on the subjective motivational set, and the requirement of yielding public justification of human rights. Therefore, the account of the deliberated internal reasons will be coherent only if it achieves internalization, i.e. acceptability, and still remains public. In this respect, the political conception faces a twofold difficulty. First, it faces a risk of internal incoherency. Second, by insisting on acceptability, it offers a too narrow understanding of the political role of human rights. Let me start from the problem of incoherency. Imagine that a government of country X, characterized as an illiberal but legitimate country, treats immigrants differently in respect of civil rights, e.g. imprisons them without a trial.11 It is not clear what the political conception’s proponents would say. Since the political conception considers inegalitarian societies legitimate, it may seem that it would not condemn discriminatory treatment of immigrants. On the other hand, such treatment significantly endangers the interests of immigrants, so on this ground the political conception may condemn the discriminatory treatment. But, the conception cannot yield the account of human rights that would both condemn and not condemn certain instances of human rights violations. In addition, insisting on acceptability of human rights implies an individual dependence on a particular society. For instance, human rights are defined as the norm of membership in a society (Cohen 2006, p. 136). It has already been objected that insisting that human rights are rights against states entails that without the states there would be no rights. Such view “makes us . . . hostage to 11

The political conception is based on the understanding that equal possession of rights is a matter of justice, rather than legitimacy. Consequently, legitimate regimes need not be egalitarian. Rawls, The Law of Peoples. p. 69.

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historical fortune” (Barry and Southwood 2011, p. 378). Also, the view is status quo biased for it ties human rights to evaluation of states only (Valentini 2012). The problem generated by such state-centered view is not only the difficulty of its application to other forms of political institutions but also its application to relations between states and all right holders. The reason for this is that by connecting human rights to membership, the political conception implies that justification of human rights is owed to members only. However, as I argued earlier, if coercive impact of states’ institutions is what is to be justified, then such impact is also owed to those attempting to enter (Abizadeh 2008). I said earlier that philosophizing about human rights requires getting the relation between their role and their justification right. It seems that the political conception gets it in the wrong direction. By defining human rights in relation to the role they play in practice, it allows pluralism excessive influence over the justification of human rights. So, one of the main claims is that because of pluralism, we need to take into account the acceptability of human rights to different states. It follows that persons can claim those rights that are so acceptable to these states. Insisting on acceptability, no matter how hypothetical it can be, seems to misunderstand the point of human rights. To justify human rights is to explain why they are claimable, and they cannot be claimable because they are acceptable. This shows not only that insistence on pluralism is thinning justification of human rights as O’Neill has recently argued (O’Neill 2016) but that insisting on it also makes it inadequate to explain a critical role human rights play in the practice. By implication, the trade-off between the human rights of migrants and those of citizens, on this view, would not appear a problem at all, for the rights of citizens can always prevail. But, if stepping aside the human rights of migrants does not appear as a reason to criticize states, then indeed it is not clear in what sense migrants have human rights at all. In sum, it seems that human rights defined as the deliberated internal reasons cannot explain in what sense the human rights of migrants are claimable against foreign states. I turn to the moral conception now. 8.5.3 The Moral Conception Given that the moral conception has not directly engaged with the task of conceptualizing the political role of human rights, I take on that task here. I will offer an account that aims to address the long-standing objection that the moral conception cannot account for the political role human rights play. More precisely, it is objected that the moral conception, by grounding human rights in moral rights, cannot capture a distinctive wrongness of institutional violation of human rights. For, if a violation of personhood is what matters,

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then all those violating it, either individuals or institutions, are considered violators in the same sense (Beitz 2009; Barry and Southwood 2011; Valentini 2012). Consequently, the moral conception is incapable of criticizing existing human rights practices (Raz 2007). In this section I will address the objection in two steps. First, I will explain how justifying human rights on the grounds of common humanity can help us solve the trade-off problem, and second, I will show how the moral conception can account for political nature of human rights. 8.5.3.1 Human Rights as External Reasons I have already suggested that the moral conception can justify human rights as the external reasons. It is high time to explain what I mean by this. The moral conception’s main claim is that human rights are moral entitlements that human beings have by virtue of common humanity. I consider appeal to common humanity an external reason since it is defined independently from the practice. Such appeal is objected on the grounds that we actually cannot define the common humanity, and consequently, it is not clear why people are equally entitled to human rights (Buchanan 2010). It is presumed that we cannot move on to discuss the latter until we find a satisfactory answer to the former. Call this the Skeptic View. Let me take a closer look at the Skeptic View. Here I introduce a distinction between equality in grounding human rights and equality in entitlement to human rights. Equality in grounding human rights: all human beings are entitled to human rights by virtue of equal possession of property X. Equal entitlement to human rights: all human beings are equally entitled to human rights. The Skeptic View holds that there is a conditional relation between the two propositions. If human beings equally possess property X, they are equally entitled to human rights. So far, so good. The problem comes with the next argumentative step which states that there are no properties equally possessed by all human beings, and consequently, there can be no equal entitlement to human rights. In some views, empirical properties vary in degrees and so call for establishing a threshold of properties in order to recognize the status of morally equal. Yet, the conditions of severely mentally disabled humans and highly cognitive nonhuman animals make the nonarbitrary establishing of a threshold for recognizing equal moral status impossible. Consequently, we cannot establish moral equality of human beings either (Arneson 1999). This claim, however, is troublesome since it is only if we knew for sure that there is absolutely no feature common to all human beings in such way, that

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we could infer that equality in grounding human rights fails. But, we still have no reason to believe that it is more likely that there is no property equally shared across humanity. Following the principle of insufficient reason (Sinn 1980), in a case there is no reason to believe that it is more likely that there is no property that is equally shared across humanity rather than that there is, we should assume that both outcomes are equally probable.12 Therefore, the epistemic limits we face in establishing what property is equally shared across humanity give us a reason to presume that there is an equal chance of both positive and negative outcomes. If both outcomes are equally probable, we should presume equal possession of properties across humanity given what is at stake, i.e. establishing fundamental moral status of all human beings. It follows that whatever we think the grounds of human rights are, human beings are equally entitled to human rights. Note that there are also normative reasons for avoiding any argumentative conundrum concerning the grounds of moral equality. For instance, one could say that the respect for dignity does not permit any consideration of scalar properties (Carter 2011). Or, one could argue that attributing equal moral worth to everyone does not imply ascribing any properties, but rather amounts to expressing an attitude of respect toward the humanity in each person (Feinberg 1973, pp. 84–85). Thus, the attitude of equal respect has an independent value and is not grounded in anything more ultimate. The proposition that all human beings are equally morally entitled to human rights has twofold implications for the political role human rights play. First, all human beings are entitled to human rights against all agents, including all political institutions. Second, common humanity not only gives all human beings claims against all agents, but it also generates a reason for it. In other words, it is precisely because human rights are universal in virtue of common humanity that all human beings have rights against all agents, including political institutions. What does this tell us about the trade-off between the human rights of migrants and those of citizens? I will leave specific implications for the last section. As a general point, grounding human rights in the common humanity gives more weight to the claims of migrants. To be sure, basic moral equality does not entail any kind of more robust equal status for this requires further arguments. What is important is that grounding human rights in the common humanity would count as exclusionary reason against some considerations, such as maximizing interests of citizens. If all human beings have the status of morally equal, then interests of everyone count equally. It follows that 12

I thank Bob Goodin for drawing my attention to the principle.

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no person’s human rights can be traded off by appeal to aggregated interests of others. As Tasioulas plausibly argues, if human beings matter in themselves then it is “a travesty simply to detach their interests from them” (Tasioulas 2015, p. 55). However, it remains to be seen if and if so, how the moral conception, at least the version I am defending here, can account for the political role of human rights. 8.5.3.2 The Political Role of Human Rights The moral conception is often characterized as being incapable of criticizing the human rights practice since it cannot account for the political role human rights play. For the easiness of exposition, I will break the objection into two claims. First, the objection states that the moral conception, by considering human rights moral rights, cannot account for its claimability. Second, it also cannot address the role human rights play against institutions. In order to address the objection, I make two related claims. First, I argue that moral rights are consistent with understanding human rights as claim rights. Second, I also argue that even though claims against everyone, moral rights are still important as claims against institutions. claim rights Human rights are mostly defined as individual claims that political institutions have a duty to fulfill (Barry and Southwood 2011). Following Hohfeld’s famous taxonomy, claim rights are rights in the strictest sense. A moral significance of having a claim right is that it imposes a duty on others (Hohfeld 1913). When duty bearers reject claims, they effectively violate human rights. By defining human rights as pre-institutional, the moral conception cannot account for their real nature, i.e. that these are claim rights. The reason for this is that moral rights are rights against all other individuals, and as such are not claim rights proper (Valentini 2012). However, taking human rights as moral rights gives rise to their claimability at least in two senses. First, the entailment of duty cannot explain the moral significance of having a human right (Thomson 1990, p. 59). Instead, it is the features of human beings, such as individual interests, that are the sources of claims. However, as argued earlier, the reliance on interests only does not suffice. It is moral equality that gives normative significance to universal interests. In other words, it is because of the equal moral status of human beings that universal interests can ground human rights and so impose duties on others (Tasioulas 2015). Furthermore, moral rights can be described as abstract “cluster” rights and as such morally significant at least in two respects. First, they serve as “cluster”

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rights, which means that they ground different kinds of rights under different social conditions. Importantly, “cluster” rights so understood do not entail correlated duties (Thomson 1990, p. 56). Instead, the relationship between cluster rights and human rights is more complicated. Abstract rights give rise to special rights in specific institutional settings. In other words, it is an institutional setting that gives content to specific rights as well as correlated duties (Gilabert 2011). Another important implication of connecting human rights to abstract moral rights is that it can explain in what sense human rights are inalienable, and accordingly, can protect from the government’s actions. The inalienable character of rights is important since it prevents governments to cause alterations in the rights without authorization by those affected (Thomson 1990, pp. 280–86). rights against institutions Human rights are defined as rights individuals have against institutions due to a crucial role institutions play in relation to human rights. Namely, institutions are capable of both significantly violating human rights and promoting them. Specifying human rights as a subset of moral rights, it is said, cannot account for this, since moral rights are pre-institutional. This objection involves two related claims: first, human rights as moral rights can exist without institutions. Second, human rights as moral rights are rights individuals have against one another, which cannot account for a distinctiveness of institutional human rights violations. The objection that human rights cannot be moral rights since the former cannot exist without institutions, while the latter can, targets Lockean accounts of natural rights. Yet, one may take the Kantian view and argue that human rights may be characterized as pre-institutional individual entitlements, the guaranteeing of which requires establishing political institutions (Valentini 2012). Thus, one could argue that the relation between human rights and political institutions is more abstract in the sense that fulfillment of human rights requires political institutions as duty bearers. The claim that individuals have pre-institutional entitlements can also explain entitlements against existing institutions. For instance, there may be moral right to free speech, but it is only after institutions are in place that we get the right to free press or free access to information. Therefore, moral rights not only need to be specified by institutions, but also give individuals entitlements against institutions once they are in place. In this section I have argued that talking human rights as moral rights has important implications for the political role of the former. Namely, the moral nature of rights can explain two defining features of human rights – their

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claimability as well as their inalienability. In addition, I have followed a Kantian understanding that moral rights not only require institutional specification, but can explain rights against institutions once they are in place. Based on this, it seems that the moral conception is able to offer a coherent account of the political role that human rights play against all institutions. I turn now to derive more concrete implications for the relation between migrants and states. 8.6 GOING BACK TO MIGRANTS

If we accept that human rights are moral rights, what are the implications for conceptualizing the role they play against foreign states? Let me start from the most general implication. Thinking about human rights in this way can help us explain claims of migrants against foreign states in two ways – by showing how violation of their rights by their own states gives rise to claims against foreign states, but also how migrants have claims against foreign states independent from the way they are treated by their own states. First, it can be argued that a violation of A’s right by X entitles him to a claim against Y. For instance, individuals that fall victims of a crime have a claim against police. Analogously, persons whose rights are violated by their states have claims against other states, such as refugees and asylum seekers have. A right does not cease to be a right if it is violated by a primary duty bearer. In addition to claims generated by violations of human rights, one can argue that human rights also entail different claims against different duty bearers. I may have a claim against state B even if my state A has not violated my rights. To illustrate the point, let me use analogy. A child has a claim against its parents to a certain kind of treatment. The child’s special relation with its parents generates special rights for it. Now, imagine the child visiting its parents’ friends. The child, even though its parents are the primary duty bearers, still has a claim against its hosts to a certain treatment. Yet, it is entitled to this specific treatment not because of special rights it has against its parents, but because of its status as a human being, or more precisely – a child. Analogously, I have claims against state B irrespective of claims I may have against state A if I happen to be affected by, or for the purpose of the present discussion, have arrived at the borders of state B. In sum, while violation of human rights by their own states is sufficient to give rise to claims against foreign states, it is not necessary for migrants to have claims against foreign states irrespective of the way they are treated by their own states. I deliberately use the vague phrase “a certain kind of treatment” for it is difficult to exactly specify what that treatment in all cases entails.

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Second, grounding human rights in the common humanity gives each and every migrant a claim against states on an individual basis. This means that migrants are entitled to a dignified treatment as individuals. Insisting on equal moral status of all human beings which entails equal significance of interests of each and every one of them implies that states cannot justify the trade-off between the human rights of migrants and those of citizens by appealing to maximization of interests of the latter. To be sure, this does not entail that governments cannot put more weight on interests of their citizens, but doing so has to be justified on grounds other than maximization of their interests. Furthermore, insisting on equal importance of interests requires an individualist approach. This means that foreign governments are to assess individual applications to entry on an individual case-by-case basis. An individual assessment of applications would mean taking into account particular circumstances of migrants. This can have important implications for existing policies. For instance, the burden-sharing policy currently employed to deal with the refugee crisis, where states unilaterally accept to take in a certain number of refugees, has to be constrained by individual assessments. This means that it is not only numbers that count when deciding whom to take in, but also particular circumstances of each and every applicant, such as her family links. Furthermore, moral rights, as a normative idea, give us a useful tool not only to criticize the practice but also to question the limits of the existing legal entitlements. Namely, if we accept that human rights are moral rights, then we have a sufficiently firm stand to question justifiability of existing legal rights. For instance, we can question the present distinction between refugees and so-called economic migrants. In this regard, one can argue that the category of refugees should also be extended to all those fleeing from poverty and natural disasters. As I mentioned earlier, violation of human rights by one’s state is not necessary to give rise to her claims against foreign states. Finally, acknowledging that the human rights of migrants indeed play a role against foreign states enriches the set of evaluative criteria we currently possess for political institutions. Thus, apart from being a condition of legitimacy in relation to citizens, one can argue that the treatment of migrants should be a part of assessing a state’s legitimacy as well. Importantly, this would give us a critical tool to assess practices of all states, no matter how democratic they might be. 8.7 CONCLUSION

In this chapter I have tried to articulate possible political implications of universal human rights. I have concentrated on the case of the relation

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between migrants and states. More specifically, I have argued that the fact that states too easily trade off the human rights of migrants for those of their citizens creates a problem for a broadly shared view that human rights are rights of all human beings. Therefore, any conception of human rights accepting universal entitlement to human rights has to be able to constrain such trade-offs, meaning that it has to offer an account of human rights such that it allows the compossibility of the human rights of migrants and those of citizens. I have examined which of the two dominant conceptions of human rights – the political and the moral one – can offer a better account of such compossibility. In this respect, I have made two claims. First, I have argued that the political conception, by defining human rights in relation to the role they play, yields an account of human rights as the deliberated internal reasons, which does not seem able to give a proper weight to the human rights of migrants, and consequently, cannot solve the trade-off problem. Second, I have also argued that the moral conception, by grounding human rights in the common humanity, can provide more weight to the human rights of migrants and, accordingly, rule out the maximization of interests of citizens as the justification for the trade-off. Since the trade-off problem ultimately concerns the justification of human rights, I have conducted the discussion at a very general level, leaving aside numerous intricate details concerning the relation between states and migrants. My aim has not been to offer a full account of such relations, but only to explain their nature. Therefore, I have only scratched the surface and more work needs to be done to fully explicate the political implications of human rights taken as moral rights. Such a project is worth pursuing, for it can help us remove the obstacles to the fulfillment of human rights that the present state system creates. BIBLIOGRAPHY Abizadeh, A. (2008) “Democratic Theory and Border Coercion No Right to Unilaterally Control Your Own Borders,” Political Theory vol. 36 no. 1, pp. 37–65. Arneson, R. J. (1999) “What, If Anything, Renders All Humans Morally Equal?,” in Jamieson Dale (ed.), Singer and His Critics, Oxford: Wiley-Blackwell, pp. 103–28. Barry, C. and Southwood, N. (2011) “What Is Special About Human Rights?,” Ethics and International Affairs, vol. 25 no. 3, pp. 369–83. Beitz, C. R. (2001) “Human Rights as a Common Concern,” American Political Science Review, vol. 2, pp. 269–82. (2009) The Idea of Human Rights. Oxford: Oxford University Press. Buchanan, A. (2010) “The Egalitarianism of Human Rights,” Ethics, vol. 120 no. 4, pp. 679–710.

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Carter, I. (2011) “Respect and the Basis of Equality,” Ethics, vol. 121 no. 3, pp. 538–71. Cohen, J. (2006) “Is There a Human Right to Democracy?,” in Sypnowich, C. (ed.), The Egalitarian Conscience: Essays in Honour of G. A. Cohen, New York: Oxford University Press, pp. 226–46. “EUR-Lex – 32013R0604 – EN – EUR-Lex,”, Regulation No 604/2013 of the European Parliament and the Council, available at: http://eur-lex.europa.eu/legal-content/ en/ALL/?uri=celex%3A32013R0604 Feinberg, J. (1973) “Human Rights,” in Social Philosophy. Prentice Hall, New Jersey, pp. 84–88. Gilabert, P. (2011) “Humanist and Political Perspectives on Human Rights,” Political Theory, vol. 39 no. 4, pp. 439–67. Goodin, R. E. (2007) “Enfranchising All Affected Interests, and Its Alternatives,” Philosophy and Public Affairs, vol. 35 no. 1, pp. 40–68. Griffin, J. (2008) On Human Rights, Oxford; New York: Oxford University Press. Hohfeld, Wesley N. (1913) “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” The Yale Law Journal, vol. 23 no. 1, pp. 16–59. “International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,” 1990. General Assembly resolution 45/158 of 18 December 1990, available at: www.ohchr.org/EN/ProfessionalInterest/Pages/ CMW.aspx Miklosi, Z. (2012) “Against the Principle of All Affected Interests,” Social Theory and Practice, vol. 38 no. 3, pp. 483–503. O’Neill, O. (2016) “Pluralism, Positivism and the Justification of Human Rights,” in Justice Across Boundaries, Cambridge: Cambridge University Press, pp. 120–34. (2015) “Response to John Tasioulas,” in Cruft, Liao, and Renzo (eds.), Philosophical Foundations of Human Rights, Oxford: Oxford University Press, pp. 71–78. Peter, F. (2015) “A Human Right to Democracy?,” in Cruft, Liao, and Renzo (eds.), Philosophical Foundations of Human Rights, Oxford: Oxford University Press, pp. 481–90. (2013) “The Human Right to Political Participation,” Journal of Ethics & Social Philosophy, vol. 7 no. 2, pp. 1–16. Rawls, J. (1999) The Law of Peoples: With, The Idea of Public Reason Revisited, Cambridge, Mass: Harvard University Press. Raz, J. (2007) “Human Rights without Foundations,” Oxford Legal Studies Research Paper, vol. 14. Refugees, United Nations High Commissioner for. “Convention on the Reduction of Statelessness.” UNHCR, 1961. “Convention Relating to the Status of Stateless Persons.” UNHCR, 2016. Simmons, A. J. (2000) Justification and Legitimacy: Essays on Rights and Obligations, Cambridge, UK; New York, NY, USA: Cambridge University Press. Simmons, A. J. (1999) “Justification and Legitimacy,” Ethics, vol. 109 no. 4, pp. 739–71. Sinn, H. W. (1980) “A Rehabilitation of the Principle of Insufficient Reason,” The Quarterly Journal of Economics, vol. 94 no. 3, pp. 493–506. Tasioulas, J. (2015) “On the Foundations of Human Rights,” in Cruft, Liao, and Renzo (eds.), Philosophical Foundations of Human Rights, Oxford: Oxford University Press, pp. 45–70. Thomson, J. J. (1990) The Realm of Rights, Cambridge, MA: Harvard University Press.

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“UN International Migration Report 2015: Highlights”, United Nations, Department of Economic and Social Affairs, ST/EAS/ESR.A/375, available at: www.un.org/en/ development/desa/population/migration/publications/migrationreport/docs/Migr ationReport2015_Highlights.pdf “Convention and Protocol Relating to the Status of Refugees.” UNHCR, 1951 Valentini, L. (2012) “Human Rights, Freedom, and Political Authority,” Political Theory, vol. 40 no. 5, pp. 573–601. (2012a) “In What Sense Are Human Rights Political? A Preliminary Exploration,” Political Studies, vol. 60 no. 1, pp. 180–94. Williams, B. (1982) Moral Luck, Cambridge: Cambridge University Press.

9 Can Naturalistic Theories of Human Rights Accommodate the Indigenous Right to Self-Determination?* Kerstin Reibold

9.1 INTRODUCTION

The indigenous right to self-determination is often called a third-generation human right. The notion of a third generation of human rights has arisen in the last decades when certain collective rights were introduced into the human rights discourse. The status of these rights as human rights is still strongly contested as they are perceived to fall outside the traditional understanding of human rights as individual rights that serve as a protection against attacks and rights abuses by the state. This view mainly goes back to what are called naturalistic theories of human rights. Consequently, philosophers like Griffin within this tradition reject the idea that collective rights can be human rights. They argue that human rights are necessarily individual rights and that this follows from the definitional features of human rights. In contrast, political conceptions of human rights are much more flexible in incorporating such “new” rights into the official human rights body. This has led to the picture that only political conceptions of human rights can support the indigenous right to self-determination as a human right whereas naturalistic conceptions might see it as a right but not as a human right (Griffin 2008). In the following, I will start by outlining how political conceptions of human rights include the indigenous right to self-determination into their theories. I will then challenge the assumption that naturalistic conceptions of human rights cannot do the same. In order to do so, I will first present four core features of naturalistic conceptions of human rights as they are identified by * I thank Will Kymlicka, Alejandra Mancilla, Seth Mayer, Johan Karlsson Schaffer, Jens Tuider, and Ursula Wolf for their comments on this chapter or earlier versions of it.

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Charles R. Beitz and the criticism they attract from alternative, namely political, conceptions of human rights. I will then discuss the distinction into basic and derived human rights that is proposed as an answer to two of these criticisms. In a third step I will show that the indigenous right to selfdetermination can be interpreted as such a derived human right even though it is a collective right. I will argue that in many cases it is a necessary means to protect the right to individual self-determination as well as the social bases of self-respect and the status equality of indigenous peoples. All of these goods constitute basic interests of human beings so that these individual interests can motivate a derived human right which protects them. 9.2 PRACTICAL IMPLICATIONS OF THE INDIGENOUS RIGHTS TO SELF-DETERMINATION BEING A HUMAN RIGHT

Whether one believes that indigenous rights are human rights or not seems largely to depend on which conception of human rights one favors: If one sticks with the more traditional naturalistic conception, collective and indigenous rights seem to have no place in the human rights discourse. Advocates of a political conception of human rights, in contrast, are much more likely to accept them as human rights. This has important implications for the practice that is informed by such background theories. According indigenous rights the status of human rights puts them on a par with other human rights. This means that in cases of rights conflicts a careful deliberation needs to take place that aims at balancing the different rights claims. This does not mean that indigenous rights will always win out over other human rights but this possibility at least needs to be considered. On the other hand, if indigenous rights are excluded from the human rights realm, they are seen as potentially weaker rights than those having human rights status. Consequently, if there is a rights conflict, they will always be trumped by the stronger human rights claims. It is worrying that the human rights discourse can be used strategically to strip indigenous rights of the protective function they are supposed to have. There are two main conflict areas in which indigenous rights are especially important and in which human rights talk can and is used to undermine them. The first area is land and resource rights. These are both separate rights as well as rights that are contained within the right to self-determination. These rights ensure that indigenous peoples have control over the use and development of their ancestral lands regardless of the good will of the state. However, many states state that they will only honor these rights as long as they do not conflict with the pursuit of the common good or general interest of the state. For

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example, Section 40 of the Australian Aboriginal Land Rights Act states that, “An exploration licence shall not be granted to a person in respect of Aboriginal land (including Aboriginal land in a conservation zone) unless . . . the Governor-General has, by Proclamation, declared that the national interest requires that the licence be granted . . . ” Similar provisions that reduce indigenous land rights to simple property rights to private lands can be found in other countries’ institutions as well. In practice, this means that these rights become noneffective exactly in those situations where they are needed the most, namely when the rights of the minority clash with the interests of the majority. The argument often given to justify the suspension of indigenous rights is that access to these resources and lands is essential in order to fulfill the human rights claims of the other state citizens. The human rights cited are mostly social and economic rights as well as the right to development. Although the latter is also a third-generation human right, its status as a human right is more accepted than that of the indigenous right to selfdetermination, thus figuring as the higher-level right in a conflict. In such cases, human rights are strategically invoked to stop any critical weighing of interests by implying that because one of the interests is protected by a human right this must be the more important one. In order to counter such claims it is crucial to determine how strong indigenous rights to land and resources are – either on their own or as a subset of the right to selfdetermination. If they are thought to be weaker than human rights, they inevitably loose out in settings where human rights rhetoric is used to back the majority’s claims. If, however, it can be shown that they can be considered human rights no matter to which theory of human rights one subscribes, this lends them considerable strength and forces the other party to engage in a weighing of the interests at stake. To resolve this issue is especially pressing if one keeps in mind that the number of these conflicts can be expected to rise in the future because the majority of today’s natural resources is on indigenous land. A similar human rights rhetoric is used in another area of conflict between indigenous people and the state. Many indigenous communities seek full internal self-determination. Apart from land rights, self-determination also includes the right to jurisdiction over the territory in question. While many indigenous communities already enjoy jurisdictional rights on their territory, they are often carefully delineated and restricted by the state. Moreover, the members of this community are thought to be not exclusively under the jurisdiction of the indigenous community but simultaneously under that of the wider state. If laws or interpretations of rights under these two jurisdictions conflict, the state can interfere and impose its law or interpretation on the

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indigenous community.1 The justification for this restriction of indigenous self-determination is usually that the state has a responsibility to protect the civil rights and human rights of all its members, including the indigenous ones. In order to fulfill this duty, it needs the power to interfere in indigenous communities if they violate those rights of their members. While this concern is commendable and the issue of protecting the human rights of group members against the powers exercised by a group is important, this same reasoning can be once again used to deny indigenous peoples their full rights and leave them vulnerable to outside attacks. Clashes between different human rights are not unusual and by now there is a wellestablished and accepted semi-hierarchy of human rights: Rights that protect the physical and psychological integrity of a person are usually taken to prevail over other rights. For example, the right to physical integrity always trumps the right to exercise one’s culture or religion. Yet, within the group of rights that are not protecting the physical and psychological integrity of a person, there is a less rigid hierarchy. Rights to access to one’s culture, freedom of religion, nondiscrimination, etc. can and must be weighed against each other in each individual case anew. By excluding the indigenous right to self-determination from the human rights list, however, such a balancing process does not need to take place if it conflicts with another human right. This enables the state to interfere even in cases in which there are minimal human rights violations or when it depends on interpretation whether a human rights violation has taken place. Making absolute human rights compliance a condition for full internal self-determination is therefore an effective way of withholding this right indefinitely. In contrast, if the indigenous right to self-determination would be regarded as a human right itself, this could enable indigenous communities to claim full internal self-determination in the absence of grave human rights violations. This seems a much fairer course of action, especially if one keeps in mind that although no existent state has a perfect human rights record, this is not used as a justification to subordinate them to another state’s authority. Rather, the protection of human rights and the decision when and how to interfere in the internal affairs of a self-determined unit is relegated to international human rights bodies and courts. If the indigenous right to self-determination can be interpreted as a human right, a strong case can be made that they should have

1

See e.g. Wilkins (1997) and the ruling in the Peters v. Campbell case described by Claude Denis (1996) as well as the statement by H. E. Ms. Rosemary Banks, Ambassador and Permanent Representative of New Zealand, on behalf of Australia, New Zealand, and the United States, available at: www.australiaun.org/unny/Soc_161006.html (last accessed 10 August 2015).

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full internal self-determination that can only be limited by the rulings of international human rights courts and bodies, but not by the state that surrounds them. This would comply with the Human Rights Committee’s General Comments on possible restrictions on the ICCPR rights listed in art. 12, 17, and 19. The General Comment on Article 12 ICCPR, for example, reads: “Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instruments amongst those, which might achieve the desired result; and they must be proportionate to the interest to be protected [Emphasis added].” If a state is worried about indigenous groups possibly violating some human rights of their members and wishes to protect these members, denying the whole group self-determination is neither the least intrusive nor a proportionate means to this end. Having international human rights bodies monitor and enforce human rights would be less intrusive, as it would still allow for selfdetermination, and also more proportionate, as it would not eradicate the exercise of one human right in favor of a (potential) violation of another one but would rather balance the protection of the whole range of human rights. Consequently, denying indigenous people full internal self-determination would be wrong if there was an alternative which would allow for both full internal selfdetermination and the protection of the individual human rights of the group members. Again, in order to make this argument in the first place, it is necessary to show that the indigenous right to self-determination can be counted as a human right so that the general principles on limitations of human rights apply. Jean L. Cohen (2008, p. 582) warns that the key problem of the naturalistic approach is that it pays too little attention to the fact that human rights and the human rights discourse today is a part of power politics. Thus it ignores the danger of philosophical human rights concepts being instrumentalized to serve the ones in power instead of protecting the values they are meant to protect. As the examples above show, this risk is very real. Consequently, it is of utmost importance to show that indigenous rights can be embraced both by political and naturalistic conceptions of human rights. This helps to prevent that naturalistic human rights conception are turned into a means to pervert the initial aims of human rights – that is to protect every individual’s basic interests from attacks by states and other powerful agents. 9.3 POLITICAL CONCEPTIONS OF HUMAN RIGHTS

Political conceptions of human rights are united by the importance they assign to the function human rights have in the modern world. For what Cohen

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(2008, p. 584) labels “empirical” political conceptions the starting point for determining the content and status of human rights is the entirety of official human rights documents and actual human rights practices in the international political and legal arena as exercised by courts, international organizations, and (quasi-)political actors such as statesmen, UN officials, and NGOs. These political conceptions determine which values human rights should protect and which tasks they should fulfill by looking at these documents and the relevant practitioners. Abstracting from what they find there, political conceptions finally draft a catalogue of human rights and construct what features they must have. This method leads to a strong practice dependence of human rights, although it does not necessarily just mirror the status quo. Beitz (2009), for example, identifies human rights as those rights that are the subject of international concern and can give cause to international action if a state fails to protect those rights. Accordingly, he is critical whether women’s rights, rights to political participation, and rights against poverty are truly human rights. He doubts that the current practice could support such a claim as he does not regard them as proper subjects of international concern (Beitz 2009, p. 160).2 Still, the main orientation for Beitz’s theory is the malleable real-world politics that generate the relevant human rights documents and govern the behavior of human rights practitioners. Accordingly, the human rights list itself is equally subject to change. This enables him to incorporate “new” human rights as long as these rights are part of the international human rights practice and doctrine. This also extends to indigenous rights, which are usually counted among the third generation of human rights. In fact, he explicitly acknowledges the “Rights of ‘peoples’ (conceived as collective entities) – most importantly, self-determination and communal control over ‘natural wealth and resources’” as a fifth category of human rights (Beitz 2009, p. 28). He thereby deviates from more conservative human rights theorists that only accept individual rights as human rights and exclude any collective rights, including the indigenous right to self-determination, from the human rights spectrum. Instead, he embraces the collective right to selfdetermination and a people’s right to its land and resources, which form the core rights of the UN Declaration on the Rights of Indigenous Peoples. Furthermore, he names the ILO Indigenous and Tribal Conventions (Beitz 2009, p. 26) among the documents constituting the international human rights doctrine and refers to the Draft Declaration on the Rights of Indigenous 2

For the revisionist aspects of Beitz’s approach, see Hessler (2013) and Schaffer’s chapter in this book.

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Peoples as a source of human rights (Beitz 2009, p. 29). Thus, it seems safe to say that even though Beitz does not discuss indigenous rights explicitly, they would be endorsed by his conception. Another influential strand of political conceptions relies less exclusively on practice. This view has been defended by Joseph Raz. Raz holds that human rights theories should have two goals: “(a) to establish the essential features which contemporary human rights practice attributes to the rights it acknowledges to be human rights; and (b) to identify the moral standards which qualify anything to be so acknowledged” (Raz 2007, p. 8). Similar to Beitz, the first part of his account is characterized by attention to actual human rights practice. Like Rawls, Raz identifies human rights as those rights that can be invoked to justify an intervention into another state, i.e. an interference into its sovereignty (Raz 2007, p. 9). Here, he employs a wide definition of intervention in that he means it to include not only armed interventions, but also trade boycotts, condemning a country’s violation of the right and other diplomatic measures (Raz 2007, p. 9). Contrary to Beitz, however, Raz’s second step in construing a human rights theory assumes that one must identify the moral rights that human beings possess independently from the human rights practice (Raz 2007, pp. 10, 18). Rather than being informed by the practice, these moral rights provide a criterion for judging whether an intervention into a state’s sovereignty is justified. Human rights then are rights for which it is morally justifiable to limit a state’s sovereignty and which at the same time have this sovereignty-limiting function in practice (Raz 2007, p. 10). Where does that leave indigenous rights? Raz does not offer a list of human rights, so there is no sure way of knowing whether he would count the indigenous right to self-determination among them. However, he does advocate the national right to self-determination. He understands this as the right of any encompassing group to demand political self-determination, which can go as far as secession, if the members of the group deem it necessary for their self-respect and prosperity (Margalit and Raz 1990, p. 461). Raz and Margalit define an encompassing group as a group that possesses “a common character and culture”; marks its members with this character and culture; has a membership that is based on mutual recognition; has importance for the selfidentification of its members, in whom “membership is a matter of belonging not of achievement”; and which is big enough that “mutual recognition is secured by the possession of general characteristics” (Margalit and Raz 1990, pp. 443–7). All of these features, save for the last one in a few cases, apply to indigenous people, which includes them into the circle of groups entitled to claim a right to self-determination. Yet, is this right a human right or a lowerlevel right according to Raz’s theory?

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Raz holds that the right to self-determination is based on the aggregation of individual interests, namely the interests in the prosperity and self-respect of their group, which bestow it with enough importance to impose a duty to respect it (Raz 1986, p. 187, 208). Furthermore, in an earlier text on national selfdetermination he imposes a duty to respect, i.e. to not hinder the group in question to exercise the right to self-determination, and even to fulfill this right, e.g. to provide aid in realizing the right, on states (Margalit and Raz 1990, pp. 460–1). Hence, he acknowledges that there is a moral right to collective selfdetermination. Now, much depends on how his criterion of limiting sovereignty is interpreted. As mentioned earlier his definition of interventions is rather broad, including also nonmilitary interventions. If understood in such a way one would need to look into the actual human rights practice concerning indigenous rights. Are there enough cases in which other states or international organizations interfered with a state’s sovereignty on behalf of indigenous rights to call them rights that can limit sovereignty? The answer, I think, is yes. Not only are failings of states addressed and publicly criticized, but human rights courts, such as the Inter-American Court of Human Rights, increasingly take up cases that pertain to violations of indigenous rights by states and issue statements, recommendations, and judicial decisions in favor of indigenous peoples (Anaya 2004). Additionally, the UN has formed its own Permanent Forum on Indigenous Issues, an Expert Mechanism, and has appointed a Special Rapporteur on the rights of indigenous peoples who can address specific cases of alleged violations of the rights of indigenous peoples. These demands to respect indigenous rights, to compensate indigenous groups, and to heed court rulings can be seen as limiting the states’ sovereignty with respect to their compliance with indigenous rights. Thus, all of Raz’s criteria for human rights are fulfilled and one would be justified to include indigenous rights into a human rights catalogue. Political conceptions thus indeed seem to have no problem to recognize indigenous rights as human rights. This mostly stems from the fact that their accounts rely heavily on what rights are acknowledged as human rights in international law and practice. Since indigenous rights have become part of the regular human rights practice at least since the UN Declaration on the Rights of Indigenous Peoples in 2008 (Engle 2011), they are easy to integrate in many political human rights conceptions. 9.4 THE FOUR FEATURES OF NATURALISTIC CONCEPTIONS OF HUMAN RIGHTS

Naturalistic conceptions of human rights predominantly view themselves as part of the modern natural law tradition which goes back to the enlightenment

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period. Within this tradition, philosophers identified certain natural rights which were thought to belong to humans by nature, independent of any legal decree. Today, the features of human rights that were honed during the enlightenment period and follow the natural rights tradition are still central to naturalistic theories of human rights. Beitz identifies four main features of them (Beitz 2009, pp. 53–8). Even though this list is not exhaustive and there are considerable variations between different naturalistic accounts, Beitz’s summary of the most common features serves as a good starting point for the discussion because most of the criticism of naturalistic human rights theories is aimed at one of these characteristics while others that are not mentioned are much less attacked.3 Firstly, it is commonly understood that human rights are based on a certain value, feature, or interest that is thought to be specific to human beings. Examples for that are accounts that ascribe humans some inherent dignity that is expressed by the ability to be a normative agent (Griffin 2008) or interpret human rights as protecting the basic conditions for a good life (Nickel 1987; Liao 2015). Human rights are then designed to protect this special human feature, value, or interest. This is also the reason why many see the concept of collective human rights so critically – after all, human rights are grounded in something distinctive of humans, which means that any other entity, including groups, does not possess the feature necessary to be a holder of human rights. Secondly, human rights are taken to be pre-legal moral rights which exist independently from cultural conventions and legal recognition: Human rights are always valid, regardless of whether a state acknowledges them and/or whether a society has values and traditions in accordance or in conflict with them. This accounts for their potential to serve as a critique of and an external yardstick for current policies and behavioral patterns (Cruft, Liao, and Renzo 2015, p. 5). In this sense they present an extralegal authority which can act as an opposing force to a country’s laws and justify citizens as well as other actors disobeying the authorities on moral grounds. On the international level it enables other states to hold their otherwise equals accountable for human rights violations and in some cases it even justifies interventions into their

3

Gilabert (2011, p. 440) characterizes naturalistic theories similarly by pointing out how they are regarding human rights as pre-institutional rights that anyone has in virtue of sharing some common interests with all other human beings and that are held not only against states but against everyone be it an individual or an institution. Etinson and Liao also stress that naturalistic conceptions are usually interpreted to say that human rights apply at all times and under all institutional arrangements.

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sovereignty. This feature accords human rights universality in scope and opposes moral relativism. Thirdly, they are also supposed to be timeless, meaning that as long as humans have existed and will exist, they possess the human rights stemming from the initially identified core features or interests of humans. Fourthly, human rights are thought of as pre-institutional. This is understood both as human rights existing independently from the particular institutions that ensure and protect them and as human rights being conceivable in the absence of such institutions. These four features of human rights – being grounded in an interest or feature specific to humans, universality, timelessness, and pre-institutionality – are central to how naturalistic theories understand and see human rights. 9.5 BASIC AND DERIVED HUMAN RIGHTS

However, this understanding of what makes a right a human right has attracted an array of criticism from advocates of political human rights theories. For the purpose of this chapter, I will focus on the two criticisms that attack the claim that human rights are pre-institutional and timeless. Critics of naturalistic human rights conceptions such as Beitz (2009) or Raz (2000) argue that human rights would not make sense as a category applied to premodern times and thus are not timeless. Furthermore, they hold that human rights are not only a response to threats that only emerge with the onset of modernity but are also dependent on the existence of certain institutions that did not exist previously. These institutions not only serve to implement and protect human rights, so the argument goes, but are also necessary to conceive of certain human rights in the first place. According to this critique, the list of human rights suddenly becomes very short if one wants to uphold all four characteristics of naturalistic theories of human rights. Beitz, for example, holds that it is not only obviously pointless to speak of certain rights in a pre-institutional setting, but also points out that even if there are institutions and a state, some human rights in the UDHR are still not conceivable unless one lives in a certain type of society (Beitz 2009, p. 55, 57). Instead of seeing human rights as timeless and institution-independent he proposes to understand these rights as a response to possibilities and threats that appear in and are distinct to modern states, thus taking up Shue’s notion of human rights as responses to “standard threats” (Shue 1996). One popular strategy to counter this criticism is to distinguish “basic” from “derived” human rights. When Beitz attacks the idea of timeless human rights, he presupposes that those who endorse that idea mean that the specific

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interpretations and formulations of human rights that we have nowadays are invariant. If the UDHR states that “Elementary education shall be compulsory” (UDHR art. 30), Beitz takes this to be the supposedly timeless human right that naturalistic theories speak of. However, proponents of the naturalistic conception such as Griffin dispute this interpretation of human rights. They admit that the human rights as they are worded in the UDHR are not timeless because they depend on certain institutional settings such as courts, schools, or a welfare system. Yet, they argue that the reason for this is that these rights are only derived human rights and not basic ones (Liao and Etinson 2012, p. 15). Basic human rights are those rights that relate directly to the feature or interest that is thought to be the very core of human rights. These rights are often rather abstract and are thought of as timeless and independent from institutions because they aim to protect something that becomes human beings no matter when or under what institutions they live. In contrast, derived human rights are neither timeless nor institution-independent. They are thought of as specifications of basic human rights that state more precisely what needs to be done at a certain time and under certain circumstances to fulfill a basic right (Griffin 2008, p. 50). According to naturalistic conceptions, it is often the latter form of human rights that is found in official human rights documents such as the UDHR (Liao and Etinson 2012, pp. 15–16). This division between basic and derived human rights allows naturalistic theories to account for the change human rights undergo and the fact that some UDHR human rights would neither have been possible to fulfill nor been conceivable in this form in former times. At the same time it justifies the assumption that there are some core human rights that are unchanging and are owed to every human being. 9.5.1 Collective Self-Determination as a Human Right Given that we accept this division into timeless, pre-institutional basic human rights and context-specific, institution-dependent derived human rights, how can this be used to include collective rights into naturalistic human rights theories? Using the indigenous right to self-determination as an example, I will demonstrate that it is possible to interpret some collective rights as derived human rights that serve to protect core human interests and features in the particular circumstances we are in today. In order to do so, I will first identify what interests are protected by the indigenous right to self-determination. I will then argue that it can be regarded as a specification of a basic human right that protects the interests discussed before. So, which values and interests of human beings are protected by the indigenous right to self-determination?

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I think one can identify two main interests that lie at the core of this right. One is the interest in individual self-determination, the other one is the interest in developing and maintaining a healthy self-respect. 9.5.2 Collective Self-Determination and Individual Self-Determination No matter what worldviews and life plans people have, they usually always have an interest in individual self-determination in the broad sense,4 that is they want to have control over their life in such a way that they can lead it in accordance with their convictions and life plans. If one has an interest in having control over one’s life, this normally also means that one wants to have an effective say in the political decisions that shape one’s life. Political decisions about rights, liberties, and the general distribution of goods impact what kind of life plans one can develop and realize. This is part of the reason why political rights feature so prominently in the Universal Declaration of Human Rights. If a group is in a constant minority position, though, these rights might not be effective. If the majority can always outvote the minority’s concerns, members of that minority find themselves in a powerless position when it comes to shaping the political community in such a way that it does not constantly threaten the realization of their life plans or makes them even impossible. There are generally two strategies to deal with this problem: Either the minority is granted special representation rights or they get some form of autonomy or self-determination rights.5 In both cases, the collective self-determination of that group is seen as closely linked to the possibilities of individual self-determination of its members. Thus, collective selfdetermination can be seen as a means to protect the individual interest in individual self-determination. Whenever the right to collective selfdetermination or special representation rights are necessary to protect individual self-determination, we can speak of these rights as derived human rights assuming that individual self-determination is a basic human right.

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I will use individual self-determination in this broad sense to avoid any possible assumptions about the value that different people (do not) attach to personal autonomy or selfdetermination understood in a specifically liberal sense as the interest in being able to critically assess and revise one’s convictions, world views, and life plans. As Kymlicka (1995, pp. 32–33) points out, self-determination rights and special representation rights need not be exclusive. Special representation rights are often complementary to selfdetermination rights in that they allow the minority to influence decisions about their selfdetermination rights on the national level and as such serve as a protection against possible attempts by the majority to revoke these rights.

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Many political, social, and cultural human rights protect individual selfdetermination so that the assumption that individual self-determination is a basic human right is justified. The right to vote, freedom of thought, religion, and conscience, freedom of movement, or the right to choose one’s occupation freely all point at the same underlying value of individual selfdetermination. The rights and freedoms mentioned function as derived human rights that serve to protect the more basic human right to individual self-determination in present-day societies. Two things follow regarding the right to collective self-determination: First, every group whose members do not have an effective say in the current political order has the right that political arrangements are changed in a way that allows it to participate meaningfully in the making of decisions that shape its members’ lives. This means that indigenous people are not the exclusive holders of this right but that any group in such a position becomes a right holder. Second, a right to collective self-determination can stem from this argument, but this is not necessarily so. The fact that individual self-determination can also be protected by special representation rights leaves it open which of these options is chosen. As long as one is chosen and implemented in a way that effectively secures the group members’ right to have an effective say in decisions that shape their lives, the basic interest in securing individual self-determination is being fulfilled. 9.6 COLLECTIVE SELF-DETERMINATION AND THE SOCIAL BASES FOR SELF-RESPECT

The second fundamental interest protected by the indigenous right to selfdetermination is the interest in having secure social bases of self-respect. In the following I will define self-respect as having a realistic and favorable picture of oneself based on the understanding of oneself being of equal worth as anyone else; of one’s abilities as being enough to control many parts of one’s life, but not being omnipotent; and of oneself as having certain entitlements but not having claims on everything. Such self-respect combines the descriptive psychological concept of self-esteem understood as “the positive or negative evaluations of the self, as in how we feel about it [Emphasis added]” (Smith and Mackie 2007, p. 107) with the more prescriptive philosophical concept of moral self-respect as “properly valuing oneself” by “affirming one’s moral rights in one’s thought, processes and behaviours” (Massey 1983, pp. 247, 250). The moral constraints on the sources of one’s self-esteem, that is the grounds on which one feels good about oneself, are introduced to distinguish self-respect from egotism, pride, or what psychologists would call too high self-

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esteem. Such phenomena describe persons with high self-esteem, i.e. someone seeing himself very favorably, but with a lack of moral self-respect. Without the guidance by moral self-respect, the sense of worth is being derived from the wrong sources, e.g. from regarding oneself as being better than everyone else or from being able to subject others to one’s will.6 Self-esteem is included to explain why someone who has moral self-respect, that is, the proper understanding of everyone as equal human agents intellectually, can still feel that he is worth less and less able than other persons.7 This in turn can lead to refraining from pursuing one’s goals, anxiety, depression, and other mental health problems (Mann et al. 2004). In contrast, someone who has the kind of self-respect described above will trust in his competence to make and pursue plans and will be confident in his own worth, while also showing respect toward others and their interests and rights. Therefore, a healthy amount of self-respect is usually perceived as crucial for leading a good life and being able to exercise one’s individual autonomy. Yet, in contrast to many other goods, self-respect cannot be provided directly. The reason for this is that self-respect is sustained from both internal and external sources, which often interact in a complex way. Internal sources of self-respect correspond closely to forms of moral self-respect. Moral self-respect is derived from conforming to moral standards (Massey 1983; Hahn 2008). External sources of self-respect are mostly studied under the heading of self-esteem in psychology. Here, social acceptance and recognition influence self-esteem considerably (Leary 1999; Kirkpatrick and Ellis 2001). Of course, in most cases people are not treated the same by everyone. There might be a difference in how their family, their friends, their peer group, and wider society treat them and while the actions of one group might sustain a person’s self-esteem, the actions of another might at the same time undermine it. There is no reliable way of predicting which of

6

7

I herein follow Stephen T. Massey’s (1983) distinction between subjective and objective concepts of self-esteem. What he terms a subjective concept of self-respect is what I call selfesteem in accordance with the psychological literature on the described phenomenon. His objective concept of self-respect is what Henning Hahn (2008) titles moral self-respect, which is the term I will use as well. The reason for rolling these two concepts into one is that such a concept of self-respect better captures the notion of self-respect that most political philosophers seem to speak of when they say that self-respect is, on the one hand, derived from one’s moral standing but at the same time can be undermined or enhanced by one’s social environment (see, e.g., Hahn 2008; Rawls 1999). The popular example of Uncle Tom, by contrast, is the depiction of someone with a lack of moral self-respect. He does have self-esteem, that is, he does not feel bad about himself, but fails to see himself as possessing the same worth as anyone else so that his basis for self-esteem, that is, conforming with the ideal of a slave showing blind deference and humility, is mistaken.

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these sources of self-respect is the most important one for a person and how much negative influence from one source a person’s self-respect can withstand if she has alternative sources of self-respect available to her. Also, the state cannot exert influence over all of these possible sources of self-respect. However, it is true that the state can control the availability of some of the external sources of self-respect and that these often play an important role in the development and maintenance of a person’s selfrespect. This is why there can be no right to self-respect as such, but it is possible to speak of a right to the social bases of self-respect, that is, a right to live in a society that does not undermine self-respect through its rules, institutions, or public culture. The state can nurture its citizens’ selfrespect in two ways: by making them feel respected and treated as equals with everyone else and by giving them the opportunities needed to exercise control over their own lives and thereby feeling as competent actors. Being respected as an equal and not treated as an inferior is very directly linked to self-respect. The respect of others conveys a feeling of respect toward one’s own self and affirms one’s status as an equal which is constitutive of one’s self-respect. Having control over one’s life, being able to pursue one’s life plans, and having a realistic chance at realizing them are essential for individuals to feel that their actions are effective and they possess the competences needed to live an autonomous life. In the following, I will discuss two interrelated mechanism through which the state can try to secure these social bases of self-respect: (1) promoting a public culture of equal and mutual respect (Rawls 1999, pp. 155–6) and (2) the provision of equal rights and liberties for all (Rawls 1999, p. 477). 9.7 EQUAL RIGHTS AND FREEDOMS

Equal rights and freedoms serve a threefold purpose. For one, they are a public statement about the assumed equality of all citizens and as such can foster the adoption of this view among citizens themselves, which is an expression of mutual respect (Rawls 1999, p. 156). At the same time they are not only a public statement about the equality of citizens but also a means to guarantee the actual equality of citizens by protecting them from attacks on their equal status. Thereby, each citizen’s perception of himself as having the same worth as any of his fellow citizens is supported. Finally, these rights and freedoms usually also give each citizen an equal say in political affairs which is essential for the feeling of having control over one’s own life chances and circumstances by taking part in shaping them. Additionally, the basic rights and liberties act as a safeguard from unwanted intrusions into

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the citizens’ lives and gives them control over important aspects of it like religion, family life, education, and so on. This ties in with the before discussed interest in individual self-determination or control over one’s own life and explains why some minority rights might be essential in this context. With regard to minorities the guarantee of the same basic rights and freedoms might not be enough to ensure that they have the same amount of control over the political processes and the political system that shape their lives. In order to give them an effective say in public politics, they might need and want either special representation rights or (partial) collective selfdetermination rights. The first option is more inclusive in that it requires the majority and the minority to engage with each other and find some common ground, demanding compromises from both sides. The second option, on the other hand, gives both sides complete control over their affairs at the cost of a more or less complete separation. Which of the two arrangements is preferable in a given situation depends on various factors. One important consideration, however, should be in how far either choice would further the perceived equality and mutual respect of citizens. I will argue that in the case of indigenous people much speaks for favoring self-determination rights over special representation rights, as they are more effective in protecting actual equality as well as status equality. They thereby fulfill a function that Buchanan (2010) identifies as one of the main motivations behind human rights, namely to secure status equality. 9.8 EQUALITY AND MUTUAL RESPECT

In the following, I will mainly talk about the paradigmatic cases of indigenous peoples, that is, peoples that have been living on a territory before the arrival of colonists and settlers from overseas and that nowadays form a minority on their original homeland territory. As such the discussion will focus on the history and present-day situation of indigenous people in countries such as the United States, Canada, South America, Australia, and New Zealand. Nevertheless, most arguments also apply to the more contested cases of indigenous peoples that were never colonized by nations coming from another continent, but who were nevertheless subjected to oppression and cultural and societal marginalization by a majority culture occupying the same or the bordering territory of their homelands. The decisive feature here is the existence of historic injustice and oppression that expresses itself in a form of cultural and territorial domination and a denial of formerly possessed self-determination rights. When deciding whether self-determination rights or special representation rights should be given to indigenous people, one important factor to consider is the history between the indigenous minority and the majority that is mainly constituted

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of descendants of former colonists. There are a number of reasons why in such a case collective self-determination rights are not only more desirable than special representation rights but also necessary in order to provide secure social bases of self-respect. In the case of indigenous people self-determination rights play a symbolic role as well as a more instrumental role. The instrumental role is largely identical to the role of minority protections discussed above. However, in the case of indigenous people this kind of protection might be felt to be even more important because there is distrust on the side of indigenous people that the state will respect their interests and deal with them on equal footing. Against a history of broken treaties and repeated rights violations, indigenous people have come to doubt agreements with the state. Moreover, the fact that members of indigenous people today are still worse-off than the average citizen of their countries in economic and social terms reinforces the impression that against all assertions to the opposite, the majority is not really invested or even interested in making them equals and erasing the negative effects of past wrongs (Spinner-Halev 2012, p. 86). Thus, one driving force behind the indigenous push for far-reaching and irrevocable self-determination rights seems to be the worry that any right short of the right to self-determination is not able to effectively protect indigenous interests or to guarantee them a fair say in decision-making. This fear seems justified if one looks at past behavior of the majority, the situation of indigenous people today, and at the ineffectiveness of alternatives to self-determination rights in this special case. One such alternative mechanism to protect indigenous interests without granting them complete selfdetermination is the concept of free, prior, and informed consent (FPIC). First introduced by the ILO, the FPIC concept demands that states and companies consult indigenous people before any projects are undertaken that affect them considerably. The goal is to get the consent of indigenous people for the project in question and to work out ways in which the negative effects can be minimized. Note that it is only necessary to seek, not to actually get, consent before conducting such a project (ILO 169). The withholding of consent does not function as a veto power, thereby it considerably lessens the possibility for indigenous people to influence the outcome. Besides, even though FPIC could still be a powerful tool, in practice it is not a protection against domination. There is a plethora of problems associated with the concept of FPIC.8 For example, there exist no criteria for the question 8

For example, see the report of the Australian government concerning problems with guaranteeing FPIC in the context of uranium mining, www.aph.gov.au/Parliamentary_Business/Co mmittees/Senate/Former_Committees/uranium/report/c11 and Banerjee (2000).

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of who can act as a legitimate representative for the community in question. In the past this has been utilized to only conduct consultations with a group that is sympathetic to the project but that does not represent the whole or even the majority of the indigenous group. Nevertheless, their consent was taken as sufficient while dissenters are silenced by not being given access to the official deliberations and by ignoring their protests. Another problem is the lack of a neutral outside authority to guarantee that the information given is sufficient and accurate. This has led to a plethora of court cases in which indigenous peoples sued because they were misinformed or information was withheld from them.9 Yet, even if successful before court, in most cases an irrevocable damage is already done, leaving indigenous people once again in a situation to which they neither consented nor from which they benefit. It leaves them feeling powerless and vulnerable to the whims of the powerful or the majority, cementing their unequal position within the state. In contrast to FPIC, the right to self-determination is a long-standing principle of international law which is well defined and internationally protected. Thus, it is much clearer what the right in question entails and violations of it are easier to identify and less contested. Furthermore, once self-determination rights are granted, these rights are more difficult to revoke or restrict in the absence of compelling arguments – a simple majority vote is not enough to withdraw self-determination competencies from a minority. Hence, in the light of founded distrust in the state’s willingness and ability to respect their rights, the right to self-determination offers a more secure protection for indigenous people than other rights designed to protect their interests. Granting indigenous groups self-determination ensures that they effectively possess the same rights as everyone else, thereby protecting their equal status. There is also a symbolic aspect of self-determination rights and the refusal to grant them. They stand for the historic injustices that the colonists inflicted on indigenous people and that were never repaired. Before the arrival of colonists and settlers, indigenous communities were self-governing units enjoying ownership of the lands that they traditionally lived on and that formed the bases not only of their livelihood but also of traditions, rituals, and beliefs that were closely connected to the land. During the years of initial colonialization both were taken away from indigenous peoples: They lost the majority of their lands as well as their status of self-governing people. Instead their living space got confined to small pockets of “reserve” land and they were incorporated into a state founded and formed by the settlers and subjected to rules and a system 9

See, for example, A´ngela Poma Poma. v. Peru and Pueblo Indı´gena Kichwa de Sarayaku v. Ecuador.

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that was not only foreign to them but to which they never consented. Treaties that were supposed to govern the mutual relations and preserve at least some of the self-governing rights of indigenous communities were broken and the new state soon treated them as just another minority living on its territory. Against this background it becomes understandable why indigenous people attach such great importance to land and self-determination rights. These two things are exactly what was wrongfully taken from them in the past and what was never restored, although the wrongfulness of these acts has been officially acknowledged by now. In this sense, the denial of self-determination rights stands for a historic injustice that endures until this day. Although the current state does admit that it was wrong to rob indigenous people of their land, they only hesitantly and minimally restore it. This reluctance of repairing wrongful acquisitions of territory and powers is even more pronounced with regard to self-determination rights. For example, Canada, the United States, Australia, and New Zealand did not sign the UN Declaration on the Rights of Indigenous People at first. They complained that this would give too much power to wide-ranging land and resource claims by their respective indigenous groups and would undermine state sovereignty with regard to provisions concerning indigenous self-determination rights.10 Especially this last statement weakens these states’ credibility as being committed to right past wrongs. It fails to acknowledge that the state sovereignty they seek to protect does not extend over indigenous people in the first place. Will Kymlicka (2015) draws attention to the fact that mass settlement that turns the original inhabitants of a territory into a minority and denies this minority self-determination rights is a form of imperial occupation. He holds that mass settlement is comparable to the annexation of a territory in the strategy employed by the foreign power and its effects on the thus created minority. The strategy employed is to change the “‘facts on the ground’ in ways that are potentially fatal to aspirations for self-determination (and indeed in ways that are intended to be fatal to these aspirations)” (Kymlicka 2015). In contrast to colonial rule or apartheid-like systems, citizenship and voting rights are not withheld from the other group but they are forced to exercise them within and under the jurisdiction of a state different from their own. The effect is that the existence of other collective selves with selfdetermination claims is concealed as everyone appears to be a free and equal citizen of the state. At the same time, the supposedly free and equal 10

See, for example, the statement by H. E. Ms. Rosemary Banks, Ambassador and Permanent Representative of New Zealand, on behalf of Australia, New Zealand, and the United States, available at: www.australiaun.org/unny/Soc_161006.html (last accessed 10 August 2015).

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members of the minority are hindered in exercising a right that the majority unquestioningly claims for itself: the right to collective self-determination. This purports a view of this minority that regards their members as anything but equal with the majority as it rests “on the assertion that the hegemonic society is fit to rule while denying the same to native peoples” (Kymlicka 2015). This view can be found even more explicitly in early court rulings such as US v. Nice, which confirmed that even if Indians become US citizens, they still remain under the guardianship of the state which therefore can limit their citizen rights. The ruling on US v. Nice declares that “When Indians are prepared to exercise the privileges and bear the burdens of one sui juris, tribal relations may be dissolved and the national guardianship ended, but the time and manner of ending the guardianship rests with Congress [Emphasis added]” and reinstates that “Citizenship is not incompatible with tribal existence or continued guardianship, and so may be conferred without completely emancipating the Indians, or placing them beyond the reach of congressional regulations adopted for their protection [Emphasis added].” It also cites US v. Kagama stating plainly that, “These Indian tribes are the wards of the nation. They are communities dependent on the United States . . . From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them and the treaties in which it has been promised, there arises the duty of protection, and, with it, the power.” These rulings explicitly ground the state’s right to interference in an assumed “weakness and helplessness” of Indians and asserts their inferior status in being wards that need guidance from a guardian state. They openly purport the view that Indians are less capable than the average American to lead their lives without a paternalizing state, thereby assigning them an inferior status and less rights and freedoms than the rest of the citizens. These rulings still form the legal basis for state interference into indigenous affairs. During decolonization “the goal was to counter the view that whole peoples where inferior in ways that disqualified them from self-government” (Buchanan 2010, p. 686) by granting these nations independence and their citizens the full range of political rights. At the same time, Indians in the United States are still held in a position that legally affirms this colonial view of them as inferior and incapable of selfgovernment. Cara Nine (2008) also gives a powerful argument for the view that “changing the facts on the ground,” that is turning indigenous people into a minority on that territory, does not lead to a supersession of all their claims as Waldron (1992) would suggest. She agrees with Waldron that the descendants of settlers did not themselves rob the indigenous population of their land and that they indeed do not have anywhere else to go. Therefore, she accedes, it would be

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wrongful to expel them from the country. Yet, she points out, the right to stay does not imply the right to impose one’s jurisdiction on the original inhabitants; they retain this right even if they should become a minority on their own lands. Of course, this does not preclude that the two groups voluntarily merge at some point and share territorial sovereignty – but if one of the groups insists on preserving their own territorial sovereignty, that is their self-determination, the other one is in no position to force them to merge. Thus, an argument as Waldron’s that sees historic injustices and claims as superseded when the circumstances change, becomes hypocritical if the change of circumstances was willfully brought about by the initial perpetrators exactly to the end of invalidating the claims of the wronged. Nine concludes that “the descendants of colonists have a duty of reparative justice to return territorial sovereignty to the original inhabitants of the land” (Nine 2008, p. 80). If Nine and Kymlicka are right – and I suggest they are – the continued denial of self-determination rights treats indigenous people as less than equal in two essential ways: They are seen as less capable than the majority to govern themselves, instead needing the “guidance” of others, and they are regarded as having less rights than the members of the majority when it comes to receiving redress for injustices and having their interest in self-determination satisfied. This last aspect also expresses a lack of concern for their interests that reflects an underlying assumption of them having less worth as persons. To sum up: Assuming that the current state’s sovereignty extends over indigenous people equals a denial that this state forcefully incorporated formerly self-governing units into its own system and unjustly imposed its rule on them. If, on the opposite, the state does admit that it violated the indigenous groups’ right to self-determination, but fails to recognize that in order to repair this injustice this right needs to be restored, its apologies and assurances to treat indigenous people justly and as equals lose credibility. This stand on the issue of self-determination not only signals to indigenous people that they are still seen as inferior to the majority. It also means that they continue to be subjected to illegitimate state powers over them, thus feeding the distrust in the state being willing to honor rights that are designed to empower indigenous people against the majority’s will. The state fails to publicly affirm what Buchanan (2010) calls status equality of all people and which has a distinctly social-comparative aspect. Buchanan (2010, p. 684) stresses that human rights aim for status equality, which is compatible with a certain level of material inequality but does not tolerate any differences in the public treatment of groups and their members that imply inferior status. Accordingly, given the specific historical situation of indigenous people, the withholding of self-determination rights can at the same time function as a denial of their equal status. It thereby also constitutes a serious

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attack on their social bases of self-respect as they are being denied the acceptance and recognition they are due. 9.9 INDIGENOUS SELF-DETERMINATION AS A DERIVED HUMAN RIGHT

Indigenous self-determination might be necessary to ensure individual selfdetermination and social bases of self-respect, but does this make the indigenous right to self-determination a human right? I have argued that in some instances collective self-determination is crucial to create the conditions necessary for self-respect, to secure individual selfdetermination through collective self-determination, and to give the group members a secure sense of status equality. Furthermore, if these goods are essential to human well-being and of high interest to human beings, there is good reason to speak of rights protecting these goods as human rights. Rawls (1999) argues convincingly for the idea that the social bases of self-respect are an important basic, or primary, good for humans because self-respect is a precondition to make use of all the other rights and freedoms persons have. Even without its relevance for the enjoyment of other rights, selfrespect seems a likely candidate for the inclusion into the list of goods that make a human life (minimally) good. It is an important part of the psychological well-being of humans and the protection of its sources deserves the importance that comes with being a human right. Individual selfdetermination is a crucial component of normative agency, which Griffin (2008) regards as the core value protected by human rights, but it can also be regarded as an interest humans have independent of their appreciation of normative agency. Every person has certain interests and aspirations on how to lead their life and individual self-determination protects their ability to realize these plans within reasonable limits. Buchanan (2010) identifies status equality as the normative core of human rights. While status equality is a value in itself for many people, it is also instrumentally important as a way of securing the social bases of self-respect. If this is true, the indigenous right to selfdetermination can be interpreted as a derived human right. It is a human right because it is derived from universal basic interests of humans. As such it safeguards individual interests even though it itself is a collective right. It is a derived human right because it is a right that is required to protect those basic interests under the specific historical and institutional circumstances of today. The right to self-determination is not a good in itself but owes its status to its significance for the fulfillment of highorder human interests. If there is a group whose members rely on the right to

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self-determination to satisfy these important individual interests, we can say that the right to self-determination is a derived human right. Nowadays, indigenous people are the most obvious candidates for such a human right. Many of the features that are seen as definitional of indigenous people qualify them at the same time for this right: Having been on the territory as selfgoverning peoples before the arrival of the settlers constituting the current majority makes for a shared experience of injustice that goes back to the loss of the status as self-determined peoples; being a minority in the country makes them more vulnerable to majority rule and puts their effective participation rights at risk; having experienced or experiencing ongoing discrimination and oppression predestines them to feel as less than equals and mistrust the rest of the society to treat them with respect and uphold their rights. Indigenous peoples have a convincing argument why they are in need of the right to self-determination in order to provide their members with self-respect and adequate individual self-determination. The same applies to any other group in a similar situation. Yet, whenever these interests can be met without granting the right to self-determination, there is no human right to selfdetermination even though there might still be good arguments for there being a right to collective self-determination. In this regard, the human right to self-determination is not universal but similar to the right to maternity care. It is nonuniversal because it is bound to certain features that are not universally distributed among humans, being a woman or respectively being a member of a group that cannot provide self-respect and a sense of identity without the right to self-determination. Accordingly, the right to self-determination is not recorded in the Universal Declaration on Human Rights but has been acknowledged by the UN in a separate declaration just like the rights of children or the rights of persons with disabilities. Although neither listed in the UDHR nor fitting the criteria of basic human rights in the naturalistic tradition at first glance, there are good reasons to count all these rights among the body of human rights as they are specific implementations of the more general rights in the Universal Declaration on Human Rights and serve to protect these individual rights in today’s world. In this sense, the indigenous right to self-determination can be considered a derived human right in the naturalistic conception even though it is a collective right. BIBLIOGRAPHY Anaya, J. (2004) “International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State,” Arizona Journal of International & Comparative Law, vol. 21 no. 1, pp. 13–61.

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Banerjee, S. B. (2000) “Whose Land Is It Anyway? National Interest, Indigenous Stakeholders, and Colonial Discourses: The Case of the Jabiluka Uranium Mine,” Organization & Environment, vol. 13 no. 1, pp. 3–38. Beitz, C. (2009) The Idea of Human Rights, Oxford: Oxford University Press. (2010) “Human Rights Without Foundations,” in J. Tasioulas & S. Besson (eds.), The Philosophy of International Law, Oxford: Oxford University Press, pp. 321–339. Buchanan, A. (2010) “The Egalitarianism of Human Rights,” Ethics, vol. 120 no. 4, pp. 679–710. Cohen, J. L. (2008) “Rethinking Human Rights, Democracy, and Sovereignty in the Age of Globalization,” Political Theory, vol. 36 no. 4, pp. 578–606. Cruft, R., Liao, S. M. and Renzo, M. (Hg.) (2015) Philosophical Foundations of Human Rights, Oxford: Oxford University Press. Denis, C. (1996) “Aboriginal Rights In / And Canadian Society: A Syewen Case Study,” International Journal of Canadian Studies, vol. 14, pp. 13–34. Engle, K. (2011) “On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights,” European Journal of International Law, vol. 22 no. 1, pp. 141–163. Gilabert, P. (2011) “Humanist and Political Perspectives on Human Rights,” Political Theory, vol. 39 no. 4, pp. 439–467. Griffin, J. (2008) On Human Rights, Oxford: Oxford University Press. Hahn, H. (2008) Moralische Selbstachtung: Zur Grundfigur einer sozialliberalen Gerechtigkeitstheorie, Berlin; New York: Walter de Gruyter. Hessler, K. (2013) “Hard Cases: Philosophy, Public Health, and Women’s Human Rights,” The Journal of Value Inquiry, vol. 47 no. 4, pp. 375–390. Kirkpatrick, L. A. and Ellis, B. J. (2001) “An Evolutionary-Psychological Approach to Self-Esteem: Multiple Domains and Multiple Functions,” in Fletcher, G. J. O. and Clark, M. S. (eds.), Blackwell Handbook of Social Psychology: Interpersonal Processes, Oxford: Blackwell Publishers, pp. 411–436. Kymlicka, W. (1995) Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford; New York: Clarendon Press; Oxford University Press. (2015) “Linking Self-Determination and Human Rights: Comment on Jones,” in Etinson, A. (ed.), Human Rights: Moral or Political? Oxford: Oxford University Press. Leary, M. R. (1999) “Making Sense of Self-Esteem,” Current Directions in Psychological Science, vol. 8 no. 1, pp. 32–35. Liao, S. M. and Etinson, A. (2012) “Political and Naturalistic Conceptions of Human Rights: A False Polemic?,” Journal of Moral Philosophy, vol. 9 no. 3, pp. 327–352. Liao, S. M. (2015) “Human Rights as Fundamental Conditions for a Good Life,” in Cruft, R., Liao, S. M., and Renzo, M. (eds.), The Philosophical Foundation of Human Rights, Oxford: Oxford University Press, pp. 79–100. Mann, M. et al. (2004) “Self-Esteem in a Broad-Spectrum Approach for Mental Health Promotion,” Health Education Research, vol. 19 no. 4, pp. 357–372. Margalit, A. and Raz, J. (1990) “National Self Determination,” The Journal of Philosophy, vol. 87 no. 9, pp. 439–461. Massey, S. J. (1983) “Is Self-Respect a Moral or a Psychological Concept?,” vol. 93 no. 2, pp. 246–261. Nickel, J. W. (1987) Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights, Berkeley: University of California Press.

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Nine, C. (2008) “A Lockean Theory of Territory,” Political Studies, vol. 56 no. 1, pp. 148–165. Rawls, J. (1999) A Theory of Justice, Cambridge: Harvard University Press. Raz, J. (1986) The Morality of Freedom, Oxford; New York: Clarendon Press; Oxford University Press. (2007) “Human Rights without Foundations,” Oxford Legal Studies Research Paper 14. Shue, H. (1996) Basic Rights, Princeton, New Jersey: Princeton University Press. Smith, Eliot R. and Mackie, D. M. (2007) Social Psychology, 3rd edition, Hove; New York: Psychology Press. Spinner-Halev, J. (2012) Enduring Injustice, Cambridge; UK; New York: Cambridge University Press. Waldron, J. (1992) “Superseding Historic Injustice,” Ethics, vol. 103 no. 1, pp. 4–28. Wilkins, D. E. (1997) American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice, Austin: University of Texas Press.

10 Political Conceptions of Human Rights and Corporate Responsibility Daniel P. Corrigan

10.1 INTRODUCTION

Does a political conception of human rights dictate a particular view of corporate human rights obligations? John Ruggie, who served as the United Nations Special Representative for Business and Human Rights, drafted the “Protect, Respect, and Remedy” Framework, which specifies corporate human rights obligations. Ruggie’s “Guiding Principles on Business and Human Rights,” which aim to implement the Framework, were unanimously adopted by the UN Human Rights Council in 2011. However, there have been numerous critics of Ruggie’s approach. A primary point of contention is that Ruggie assigns to corporations only a responsibility to respect human rights, while states (or governments) bear the full range of human rights obligations, including duties to respect, protect, and fulfill these rights. Some critics have argued that corporations should be responsible for a wider range of human rights obligations, beyond merely an obligation to respect such rights. Furthermore, it has been argued that Ruggie relied on a political conception of human rights, and that this is what led him to limit corporate obligation to mere respect for human rights. In this chapter, I explore and critically assess this general claim about political conceptions of human rights. This will involve distinguishing different types of political conceptions of human rights, as well as specifying what makes a theory of human rights a “political conception.” In light of this clarificatory discussion, I argue that the general thesis is false; the

I am grateful to Johann Karlsson Schaffer, James Nickel, Brad Cokelet, Jelena Belic, Kerstin Reibold, and Alain Zysset for commenting on versions of this chapter.

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mere fact that a theory offers a political conception of human rights does not necessarily entail any certain range of corporate human rights obligations. Finally, I identify some of the other aspects of a theory of human rights that do affect the range of corporate human rights obligations it will prescribe. In Section 10.1, I provide a brief history of recent attempts by the UN to frame corporate human rights obligations. In Section 10.2, I outline the criticism of Ruggie’s Framework, which contends that it was reliance on a political, rather than moral, conception of human rights that led him to limit corporate obligation to mere respect for human rights. In Section 10.3, I provide a brief characterization of the distinction between moral and political conceptions of human rights. In Section 10.4, I consider two approaches that have been suggested as underpinning the development of the Framework. I offer a criterion for determining whether an approach to constructing human rights norms constitutes a political conception of human rights, and claim that both of the suggested approaches constitute versions of a political conception of human rights. I then draw the preliminary conclusion that a political conception of human rights can endorse either no corporate human rights obligations or a narrow range of such obligations. In Section 10.5, I consider the most prominent political conceptions of human rights, those offered by John Rawls, Joseph Raz, and Charles Beitz. These theories of human rights will be assessed in terms of two aspects: the essential feature(s) or function(s) they attribute to human rights and the standard(s) they use to qualify a norm as a legitimate human right. I also discuss the degree to which each theory is more revisionary or more conforming with regard to international human rights practice. In Section 10.6, I show that human rights practice can be understood as including a broader or narrower range of the activities relating to human rights, and that this will tend to influence whether a political conception of human rights recognizes a more or less state-centric account of human rights obligations. If a political conception of human rights relies on a broader conception of the practice, this may make it more likely that the theory will prescribe corporate human rights obligations. Finally, I conclude that the range of corporate human rights obligations prescribed by a theory is underdetermined by the mere fact that a theory offers a political conception of human rights. The factors that play a role in this determination include the range of aspects included in the conception of the practice on which theory relies, and in turn, the degree to which this conception of the practice leads the theory to conform with existing human rights norms.

10. Political Conceptions of Human Rights and Corporate Responsibility 231 10.2 A RECENT HISTORY OF BUSINESS AND HUMAN RIGHTS AT THE UN

In the 1990s, as economic globalization and its effects became more pervasive, the UN began to direct more attention to the issue of multinational corporations (MNCs) and human rights. This led the UN Sub-Commission on the Promotion and Protection of Human Rights to create a working group to examine the issue. By 2003, the working group had produced the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” (Sub-Commission 2003). The Norms identified a range of areas in which MNCs would have human rights responsibilities. Within the MNCs’ “spheres of activity and influence,” it assigned to MNCs the same range of human rights obligations as states. In other words, within this sphere, MNCs would have duties to respect, protect, and fulfill human rights. In 2003, the Sub-Commission voted to approve the Norms. However, the Norms faced strong opposition from the business community. When the Norms were brought before the Sub-Commission’s parent body, the UN Commission on Human Rights, it decided not to adopt them. While the Commission chose not to adopt the Norms, it nevertheless sought continued examination of the issue of business and human rights, and requested the appointment of a special representative to further investigate. In 2005, Harvard political scientist John Ruggie was appointed the United Nations Special Representative of the Secretary General (SRSG) on human rights and transnational corporation and other business enterprises. After extensive research, and consultation with governments, business, and civil society from around the world, in 2008 Ruggie released “Protect, Respect, and Remedy: A Framework for Business and Human Rights” (United Nations Human Rights Council 2008). The Framework was favorably received by a variety of stakeholders, which led the UN Human Rights Council to extend Ruggie’s appointment and ask that he develop guidelines for its implementation. Ruggie proceeded with this task, and in June of 2011, the Human Rights Council voted unanimously to adopt his “Guiding Principles on Business and Human Rights,” which seeks to operationalize the Framework (United Nations Human Rights Council 2011). International human rights law, which applies primarily to states, divides the duties corresponding to human rights into three distinct obligations to respect, protect, and fulfill. The UN High Commissioner for Human Rights defines each of these duties as follows: respect for a right requires that states “refrain from interfering with or curtailing the enjoyment of a right,” protection of a right requires that a state “protect individuals and groups against

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human rights abuses,” and fulfillment of a right requires a state to “take positive action to facilitate the enjoyment” of the right (United Nations High Commissioner for Human Rights). Ruggie’s “Protect, Respect, and Remedy” Framework relies on this tripartite distinction of human rights obligations recognized in international law. As its name suggests, the Framework involves three dimensions: The first is the state duty to protect human rights, which requires states to “protect against human rights abuses committed by third parties, including business, through appropriate policies, regulation, and adjudication” (United Nations Human Rights Council 2008). The second is the corporate responsibility to respect human rights by “acting with due diligence to avoid infringing on the rights of others, and addressing harms that do occur” (United Nations Human Rights Council 2008). And the third is access to effective remedy, which involves an acknowledgment that “effective grievance mechanisms play an important role in both the state duty to protect and the corporate responsibility to respect” (United Nations Human Rights Council 2008). In relation to the state duty to protect, this requires that “states take the most appropriate steps within their territory and/or jurisdiction to ensure that when such abuses occur, those affected have access to effective remedy through judicial, administrative, legislative or other appropriate means” (United Nations Human Rights Council 2008). In relation to the corporate responsibility to respect, it requires that “company-level mechanisms should also operate through dialogue and engagement rather than the company itself acting as adjudicator of its own actions” (United Nations Human Rights Council 2008). In short, the Framework attempts to clearly divide the human rights obligations of government and business. In keeping with international law, it reiterates that states bear the full range of human rights obligations, including duties to respect, protect, and fulfill human rights, while emphasizing that the duty to protect human rights includes ensuring protection against abuses by third parties such as corporations.1 Additionally, it makes the determination that corporations simply have a responsibility to respect human rights. Respect for human rights requires corporations to “avoid infringing on the human rights of others,” and if they do, to “address human rights impacts with which they are involved” (United Nations Human Rights Council 2008). In other words, the Framework clarifies the respective roles of each party, by assigning to businesses 1

The Framework requires that states “must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish, and redress such abuse through effective policies, legislation, regulations, and adjudication.” (United Nations Human Rights Council 2011).

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an obligation not to cause harm through a failure to respect human rights, and when they do so, to address such harm, and reiterating that states have this same obligation, in addition to obligations to protect and fulfill human rights. 10.3 A CRITICISM OF RUGGIE’S FRAMEWORK

A number of critics have taken issue with Ruggie’s restriction of corporate human rights obligations to a mere responsibility to respect such rights. These critics believe that corporations ought to bear responsibility for a wider range of human rights obligations, including obligations to protect and fulfill such rights.2 Throughout this chapter, I will refer to an obligation to merely respect human rights as a “narrow” range of human rights obligations, and the inclusion of an additional obligation to protect and/or fulfill human rights as a “broad” range of human rights obligations. There are a number of dimensions to this debate, but here I want to focus on a particular aspect. This is the claim that Ruggie’s endorsement of a narrow range of corporate human rights obligations derives from his (supposed) reliance on a political, rather than a moral, conception of human rights. Florian Wettstein has advanced this criticism. Wettstein claims that accounts of corporate human rights obligations “typically are based on political or legal conceptions of human rights (which can then be extended into the private sphere), rather than on moral ones” (Wettstein 2012, p. 744). Furthermore, he adds, this is true of Ruggie’s Framework: “The SRSG’s framework is a case in point. It explicitly refers to the International Bill of Human Rights and the ILO core conventions and thus to a combination of legal and political conceptions of human rights as the benchmark against which to judge the human rights conduct of companies” (Wettstein 2012, p. 744). Finally, Wettstein points to this political (or legal) conception of human rights as directing focus on negative duties not to infringe on rights, and thus as the source of the Framework’s narrow range of corporate human rights obligations. As a result . . . the discussion on business and human rights has been centered in large parts on wrongdoing and, accordingly, tends to adopt an overly narrow focus on corporate obligations of a negative kind, that is, on obligations of non-interference and “do no harm.” Symptomatically, also Ruggie’s

2

For examples of those advocating a wider range of corporate human rights obligations, see Florian Wettstein, Multinational Corporations and Global Justice: Human Rights Obligations of A Quasi-Governmental Institution (Stanford Business Books, 2009); and David Jason Karp, Responsibility for Human Rights: Transnational Corporations in Imperfect States (Cambridge University Press, 2014).

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tripartite framework defines human rights obligations of corporations exclusively in negative terms as duties to respect human rights, while assigning all duties in the positive realm to the state alone. (Wettstein 2012, p. 745)

Thus, Wettstein contends that the endorsement of a narrow range of corporate human rights obligations, which he refers to as Ruggie’s “human rights minimalism,” is due to the fact that Ruggie relied on a political conception of human rights. However, even if one grants that the Framework relies on a political conception of human rights, is Wettstein correct that this is what led Ruggie to endorse a narrow range of corporate human rights obligations? 10.4 POLITICAL VS. MORAL CONCEPTIONS OF HUMAN RIGHTS

Let us now turn to the current controversy among philosophers about how to properly theorize human rights, which involves the distinction between moral and political conceptions of human rights. Political conceptions of human rights are typically characterized by their focus on the role(s) that human rights play in political relations between states at the international level.3 Such roles often include limiting state sovereignty and providing a criterion for legitimate interference by other states, among others. Political conceptions generally take the practice of international human rights as their starting point, and theorize human rights based on a characterization of this practice. The “practice” is usually understood to refer to the movement that began in the wake of World War II, beginning with the drafting of Universal Declaration of Human Rights (UDHR), the subsequent drafting of numerous legally binding human rights conventions and their adoption by the majority of states around the world, and the activities surrounding these documents, including the work of monitoring bodies, human rights courts, and so forth. But as we will see, the notion of human rights “practice” can have fuzzy borders, and may include a broader or narrower set of activities associated with international human rights.4 The focus

3

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See, for example, John Rawls, The Law of Peoples (Harvard University Press, 1999); Charles Beitz, The Idea of Human Rights (Oxford University Press, 2009); and Joseph Raz, “Human Rights Without Foundations,” in The Philosophy of International Law (Oxford University Press, 2010). A broader or narrower set of the sorts of activities just mentioned should not be confused with the earlier reference to a narrow versus broad range of human rights obligations. The current discussion is concerned with the sorts of activities that comprise the practice of human rights, whereas the earlier reference was concerned with the range of obligations that human rights impose on duty bearers.

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on the role(s) or function(s) which human rights play in the relations between states implies that political conceptions of human rights will tend to give primary attention to the obligations that human rights impose on states. Moral conceptions of human rights may or may not appeal to the practice of international human rights, typically situate human rights within the natural rights tradition,5 and view human rights as the rights that individuals possess simply in virtue of their humanity.6 Thus, moral conceptions of human rights tend to see the human rights listed in the UDHR and subsequent human rights documents, as simply giving political or legal recognition to preexisting moral rights. The focus on human rights as moral claims tends to be taken to imply that human rights impose obligations on all agents, including both individuals and institutional agents, such as states, NGOs, and corporations.7 Based on these general and abstract characterizations of political and moral conceptions of human rights, a couple of things become immediately apparent. First, at this level of abstraction, we will be unable to determine whether political or moral conceptions of human rights necessarily prescribe a certain range of corporate human rights obligations. Second, the characterization of political conceptions of human rights just offered differs from what Wettstein has in mind when he uses that term. In other words, Wettstein is not using the term “political conception” of human rights in the same way that political philosophers typically do. When Wettstein claims that Ruggie relies on a “political conception” of human rights, he points to Ruggie’s reference to the International Bill of Human Rights and the ILO core convention. In other words, for Wettstein, a political conception of human rights is constituted by appeal to international human rights treatises and conventions, rather than to the role that human rights play in the relations between states. So we will need to sort out these different uses of the term, and determine what qualifies a theory as a “political conception” of human rights. 10.5 POLITICAL CONCEPTIONS OF HUMAN RIGHTS: WETTSTEIN AND RUGGIE

Before turning to the most prominent political conceptions of human rights, which have been developed by political philosophers, let us first consider Wettstein’s characterization of a political conception, as well as Ruggie’s own 5

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However, moral conceptions need not endorse all aspects of this tradition, such as the view that human rights must be pre-institutional. See, for example, James Griffin, On Human Rights (Oxford University Press, 2008). See, for example, Denis G. Arnold, “Transnational Corporations and the Duty to Respect Basic Human Rights,” Business Ethics Quarterly (2010).

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description of his approach to developing the Framework. As we shall see, Ruggie offers a different account of his methodology than the one Wettstein attributes to him. When Wettstein uses the term “political conception” of human rights, he seems to have in mind a legalistic view, that is, one which appeals almost entirely to human rights treatises and conventions. For Wettstein, a political conception of human rights, in contrast to a moral conception, has little or no room for prescriptions beyond those embodied in current human rights law and conventions. This is why he believes that Ruggie’s appeal to the International Bill of Human Rights necessarily led to the endorsement of a narrow range of corporate human rights obligations. The International Bill of Human Rights imposes direct (legal) human rights obligations only, or primarily, on states, and thus does not necessarily allow for the recognition of direct corporate human rights obligations, and particularly not for a broad range of such obligations. However, Ruggie himself claims to have taken a different approach when developing the Framework. Rather than relying on human rights treatises and conventions, Ruggie says that in formulating the corporate responsibility to respect human rights, he was specifying something that “already exists as a well-established social norm” (Ruggie 2013, p. 91). According to Ruggie, “a social norm expresses a collective sense of ‘oughtness’ with regard to the expected conduct of social actors, distinguishing between permissible and impermissible acts in given circumstances; and it is accompanied by some probability that deviations from the norm will be socially sanctioned, even if only by widespread opprobrium” (Ruggie 2013, pp. 91–2). Furthermore, Ruggie contends, while different people and societies hold different expectations about corporate conduct concerning human rights, “one social norm has acquired near-universal recognition within the global social sphere in which multinationals operate; the corporate responsibility to respect human rights” (Ruggie 2013, p. 92). Thus, Ruggie’s justification for codifying the corporate responsibility to respect human rights is that it is a more or less universally held social norm. In other words, this approach seeks to identify the human rights norms that all (or nearly all) parties agree upon, and endorses those as the legitimate ones. This type of approach can be referred to as an “agreement theory.”8 8

See Beitz’s discussion of agreement theories in The Idea of Human Rights, chapter 4. Beitz distinguishes three types of agreement theories: common core, overlapping consensus, and progressive convergence. Ruggie seems to employ the common core version of agreement theory, which appeals to the “lowest common denominator” that all cultures or societies agree upon. As Beitz points out, the common core idea would end up excluding substantial parts of

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Now let us compare these two theories. First, both the legalistic theory and the agreement theory can be classified as versions of a political conception of human rights. They do not appeal to moral rights grounded in people’s humanity or human dignity, as moral conceptions are apt to do. Rather, the legalistic version appeals to the contents of contemporary human rights treatises and conventions in order to ground human rights norms, while the agreement version appeals to more or less universal agreement by all cultures or societies in order to ground human rights norms. Thus, both versions ground human rights in a political or social basis, rather than appeal to the moral rights of individuals. I believe this is sufficient to classify them as political conceptions of human rights, although they do not appeal to the functional role that political philosophers have generally taken to be characteristic of political conceptions, namely, regulating the political relations between states on the international level.9 Second, these two versions of a political conception may entail a different range of corporate human rights obligations. The legalistic version is constituted by appeal to contemporary human rights documents, namely, the International Bill of Human Rights and ILO core conventions. But it is not clear whether even a narrow range of corporate human rights obligations can be derived from these documents. These treatises and conventions impose human rights obligations on states, but do not necessarily impose direct

9

contemporary human rights doctrine, because these are not agreed upon by all cultures or societies. This may create an inconsistency for Ruggie. He appeals to common core agreement theory to justify the corporate responsibility to respect human rights, but then appeals to the International Bill of Human Rights to identify the list of human rights that corporations have an obligation to respect. But if not all human rights listed in the International Bill of Human Rights can be justified by common core agreement theory, there may be a conflict. This is because the corporate responsibility to respect human rights is based on one approach to justification, while the rights it refers to must be based on some other approach that is capable of justifying that set of rights. Whether this is genuinely a problem depends on whether it is necessary to have the same justificatory basis for human rights themselves as for the norms that assign the obligations to which the rights give rise. Regardless, Ruggie’s explanation of his justification for codifying the corporate responsibility to respect human rights seems to make it clear that he relied upon the common core approach in developing this norm. As Alain Zysset has pointed out to me, political conceptions appeal to the practice of human rights, and the mere fact that states draft and sign treatises and conventions does not in itself constitute a practice. States may sign such documents, and then nothing more comes of it. In that case, a practice never arises. However, I believe that we can interpret Wettstein as assuming that the human rights treaties and conventions he refers to (the International Bill of Human Rights) are accompanied by treaty bodies, enforcement mechanisms, and other aspects that comprise a practice (loosely defined). In other words, it seems safe to assume that Wettstein does think of these treatises as embedded in a practice. However, his legalistic version of a political conception holds that treatises and conventions are the only aspect of the practice that serve as a source for identifying legitimate human rights norms.

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human rights obligations on any other agents. This is certainly true of the legally binding human rights covenants (ICCPR and ICESCR), which impose legal obligations only on the states that are party to them. The UDHR, which is not a legally binding treaty, contains a clause that states “every individual and every organ of society” has an obligation to “promote respect for these rights . . . and . . . to secure their universal and effective recognition and observance” (United Nations General Assembly 1948, Preamble). Perhaps direct corporate human rights obligations could be derived from this particular clause. If so, however, it is extremely unclear precisely what range of corporate human rights obligations would be prescribed. There is reference to “respect,” but also to “effective recognition” and “observance.” Can these latter terms be understood as involving obligations to protect or fulfill human rights? The clause is open to multiple interpretations, which renders it difficult to determine whether it can serve as a basis for any direct corporate human rights obligations, and if so, what range of obligations. If no direct corporate human rights obligations can be derived from the legalistic version, then contrary to Wettstein’s claim, Ruggie could not have developed the corporate responsibility to respect human rights based on such an approach. But perhaps Wettstein believes it is possible to derive a narrow range of corporate human rights obligations from the UDHR, or from some other element of the relevant human rights treatises and conventions. He never explains precisely how he believes Ruggie derived this norm from the treatises and conventions in question. In the case of the agreement version, a narrow conception of direct corporate human rights obligation can be justified, assuming Ruggie is correct that a corporate obligation to respect human rights is a more or less universally agreed upon human rights norm. However, it is important to point out that the agreement version does not necessarily entail a narrow range of corporate human rights obligations. It allows that the range of justified corporate human rights obligations can change as universal agreement shifts. So given time, it is always possible there could come to be universal agreement that corporations also have an obligation to protect or fulfill human rights, or that corporations have no direct human rights obligations at all. In fact, the international human rights regime is an evolving practice, as are the normative beliefs surrounding it. Direct human rights obligations of corporations is a relatively new issue, and there is not yet strongly settled opinion on the matter. Thus, rather than the agreement version necessarily entailing any specific range of corporate human rights obligations, it is a merely contingent empirical truth that it entails a narrow range of such obligations at the present time.

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So far, then, we have seen that a political conception of human rights can potentially entail no corporate human rights obligations (according to a certain interpretation of the legalistic version), or, contingently, a narrow range of corporate human rights obligations (according to the agreement version, given currently held normative beliefs). And thus it might seem Wettstein was correct to claim that Ruggie’s reliance on a political conception of human rights dictated that the Framework would prescribe only a narrow range of corporate human rights obligations. So, given our investigation up to this point, Wettstein’s claim does seem to be correct, as long as he did not mean it as a necessary, rather than a merely contingent, truth (based on present facts about universal agreement). However, before settling on this conclusion, we should examine the most prominent political conceptions of human rights, those developed by political philosophers. Whereas Wettstein and Ruggie offer quite brief characterizations of the versions of a political conception they have in mind, John Rawls, Joseph Raz, and Charles Beitz have developed much more elaborate political conceptions. Examining these theories will put us in a position to more fully determine whether political conceptions of human rights entail a specific range of corporate human rights obligations. 10.6 POLITICAL CONCEPTIONS OF HUMAN RIGHTS: RAWLS, RAZ, AND BEITZ

Joseph Raz claims that a political conception of human rights will include two aspects: (1) it will establish the essential features that the practice of international human rights attributes to such rights; and (2) it will identify the moral standards that qualify a norm as a human right (Raz 2010). Let us refer to these two aspects of a political conception of human rights as the “essential features (or functions)” aspect and the “qualification standards” aspect.10 Before proceeding, I want to point out that given my view that the legalistic and agreement versions count as political conceptions of human rights, I do not necessarily accept Raz’s claim that every political conception will include these two aspects. While both the legalistic version and the agreement version include the qualification standards aspect, it is not immediately apparent that they include the essential features aspect. The legalistic version claims that inclusion in a human rights convention is the standard that qualifies a right as 10

I do not use the term “moral qualifications standards,” because I think Raz is wrong to assume that standards which qualify something as a legitimate human right must be moral in nature. For example, the legalistic version very clearly does not appeal to a moral qualification standard, and perhaps the agreement version does not either, depending on what we understand to be a “moral” standard.

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a legitimate human right, while the agreement version holds that being a more or less universally agreed upon human right is the standard that qualifies a right as a legitimate human right. But neither of those theories, at least given the very brief characterizations offered by Wettstein and Ruggie, seem to explicitly identify the essential features attributed to human rights by the practice.11 So, rather than Raz’s two aspects being necessary features of a political conception of human rights, I maintain that it is appeal to a social or political basis for human rights which qualifies a theory as a political conception. Nevertheless, Raz’s two aspects suggest a helpful way of approaching the political conceptions that have been developed by political philosophers. Indeed, we will find that both aspects are to be found in the theories of Rawls, Raz, and Beitz. So let us now proceed by assessing the remaining political conceptions of human rights in terms of these two aspects. John Rawls has offered perhaps the most influential political conception of human rights in his book The Law of Peoples. In this work, Rawls presents a theory of international justice. His methodology is to provide a normative reconstruction of the principles of international law, which will yield a theoretical framework for determining just relations between societies of peoples. In the course of this reconstruction, Rawls presents his political conception of human rights. For Rawls (1999, p. 80), human rights play three roles: 1 2

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Their fulfillment is a necessary condition of the decency of society’s political institutions and of its legal order. Their fulfillment is a sufficient condition to exclude justified and forceful intervention by other peoples, for example, by diplomatic and economic sanctions, or in grave cases by military force. They set a limit to the pluralism among peoples.

This provides Rawls’s account of the essential features aspect. For Rawls, the essential feature or function of human rights is to provide a criterion for the decency of the political institutions of a society, which if met, excludes the possibility of justified intervention by other states and the international community. As a corollary of this, human rights define the limits of acceptable pluralism among societies. In other words, if a society behaves in a way that violates human rights, then it has exceeded the limits of pluralism tolerable in international society, and other societies or the international community are then justified in intervening in that society. 11

I will later argue that we can identify the essential feature(s) or function(s) attributed to human rights by the legalistic version and the agreement version, and that this will be derived from the qualification standards aspect of these theories.

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When it comes to the qualification standards aspect, Rawls holds that human rights are “necessary conditions of any system of social cooperation” (Rawls 1999, p. 68). For Rawls, social cooperation is a matter of cooperation between “free and equal people,” which entails fair terms of cooperation and a system of mutual advantage.12 Based on these criteria, Rawls offers a very short list of human rights, which includes merely the rights to life, liberty, and formally equality (similar cases must be treated similarly) (Rawls 1999, p. 65). In comparison to the UDHR, and other international human rights documents, this is a sharply truncated list of rights. So, at least in this respect, Rawls’s theory of human rights is quite revisionary, because it deviates drastically from the practice of international human rights. At this point, we should notice that Rawls’s theory of human rights has little to say about what, if any, should be the human rights obligations of corporations. Rawls has defined the essential feature or function of human rights exclusively in terms of the role they play in the relations between societies or states in the international arena. So when it comes to corporate human rights obligations, one can read Rawls in at least two different ways: First, Rawls could be read as providing an exhaustive account of the role of human rights, in which case, his theory prescribes no direct human rights obligations for corporations, because human rights (directly) apply only to societies or states. Second, Rawls could be read as merely focusing on a theory of international justice between societies or states, and thus only specifying the role of human rights in that context. On this latter reading, we do not know what Rawls would say about corporate human rights obligations, because he never provided a comprehensive theory of human rights. If the latter reading is correct, then Rawls’s political conception of human rights is silent on the matter of corporate human rights obligations, and offers no prescription when it comes to a narrow versus broad range of such obligations. Joseph Raz’s political conception of human rights is perhaps less developed than Rawls’s theory, but offers some interesting contrasts (Raz 2010). In terms of the essential features aspect, Raz holds that human rights set limits to state sovereignty. More specifically, he claims, “the fact that a right is a human right [is] a defeasibly sufficient ground for taking action against violators in the international arena, that is to take its violation as a reason for action” (Raz 2010, p. 328). So Raz and Rawls attribute nearly the same essential feature or function to human rights. However, the two theories differ when it comes to the qualification standards aspect. Raz holds that “human rights are those 12

For further discussion of Rawls’s notion of “social cooperation,” see Luise Mueller, this volume.

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regarding which sovereignty-limiting measures are morally justified” (Raz 2010, p. 329). He believes that Rawls’s criterion for something being a human right, that it be a necessary condition of any system of social cooperation, is insufficient. This is because while Rawls’s criterion may help to define the limits of state authority, which concern the morality of a state’s actions, this criterion fails to define the limits of sovereignty, because such a criterion must also involve the right of others to intervene. Not all moral wrongdoing by a state will justify intervention by other states or the international community. The right of others to intervene will depend in part on the international situation (e.g., whether intervention will be used to increase the domination of a superpower over its rivals), and not merely on the morality of the actions of the state that is the potential subject of intervention. Raz does not specify which types of wrongdoing justify intervention (the justified limits of sovereignty), and thus does not provide a list of justified human rights. However, it is safe to assume that his theory, like Rawls’s theory, will offer a truncated list of human rights in comparison to the UDHR and other international human rights documents. This is because there are many rights included in such documents which surely Raz does not believe justify intervention. Examples of such rights in the UDHR include the right to periodic holidays with pay, the right to social security, and the right to education, to name just a few. For instance, if a state fails to provide a system of social security, or if it fails to provide basic public education for a large percentage of its children, this is not usually understood as a justification for intervention by other states or the international community. And, in fact, there are many states that currently fail in just these ways. But no one calls for forceful intervention in such states. Furthermore, Raz himself seems to suggest that the list of rights found in international human rights documents exceed those which he believes are justified, when he says, “International law is at fault when it recognizes as a human right something which, morally speaking, is not a right or not one whose violation might justify international actions against a state . . . ” (Raz 2010, p. 329). So as with Rawls, Raz appears to deviate from the practice of international human rights, by offering a fairly revisionary theory in terms of the list of rights that qualify as legitimate human rights. However, Raz differs from Rawls when it comes to the issue of corporate human rights obligations. While pointing out that states have been the primary agents addressed in international law, and that in accordance with this his theory treats human rights as being rights against states, he nevertheless allows that human rights may also be rights against agents other than states.

10. Political Conceptions of Human Rights and Corporate Responsibility 243 But I do not mean that human rights are rights held only against states, or only in the international arena. Human rights can be held against international organizations, and other international agents, and almost always they will be rights against individuals and other domestic institutions. The claim is only that being rights whose violation is a reason for action against states in the international arena is distinctive of human rights, according to human rights practice. (Raz 2010, p. 329)

In other words, Raz treats the violation of human rights by government as a reason for action against states as the distinctive feature or function of international human rights practice, but he is not claiming that this is a complete characterization of human rights. Raz acknowledges that human rights can impose duties on individuals and domestic institutions, as well as non-state international agents. And if he allows that individuals can have human rights obligations, then it seems likely he will include domestic and multinational corporations among the “domestic institutions” and “non-state international agents” that can have human rights obligations. For surely if individuals can have human rights obligations, then corporations, with their far greater resources and power, can have human rights obligations. However, Raz says nothing further about this dimension of human rights. And thus Raz’s theory is silent about whether it would prescribe a narrow or broad range of corporate human rights obligations. The difference between Raz’s and Rawls’s theories in this regard is simply that Raz seems to explicitly acknowledge that corporations can have direct human rights obligations, while Rawls (at least on the second reading) is silent about whether this is the case. Charles Beitz offers the most developed political conception of human rights (Beitz 2009). His methodology involves first providing a close interpretation of the practice of international human rights, which can then be used to develop a model that best characterizes the practice. This model provides an account of the practice, including its values and purposes, which can be used to judge the various aspects of it. After assessing and interpreting the practice, Beitz arrives at what he refers to as a “two-level model” of human rights, which is comprised of three elements. The first element defines human rights: “Human rights are requirements whose object is to protect urgent individual interests against predictable dangers (‘standard threats’) to which they are vulnerable under typical circumstances of life in a modern world composed of states” (Beitz 2009, p. 109). The second element specifies the “first-level” obligations created by human rights. Human rights apply first and foremost to the political institutions of states, including their constitutions, laws, and public policies, and require states

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to respect, protect, and “aid” these rights. The third element specifies the “second-level” obligations created by human rights. It identifies human rights as matters of “international concern,” and holds that when states fail in their first-level obligations, human rights may provide a reason for capable outside agents to act. Such action is called for in the following circumstances: states and non-state agents with the means to act effectively have pro tanto reasons to assist an individual state to satisfy human rights standards in cases in which the state itself lacks the capacity to do so, and . . . states and non-state agents with the means to act effectively have pro tanto reasons to interfere in an individual state to protect human rights in cases in which states fail through a lack of will to do so. (Beitz 2009, p. 109)

This is a two-level model because, at a first level it assigns to states primary responsibility for respecting, protecting, and fulfilling the human rights of their residents, and at a second level it assigns to the international community the role of guarantor of those responsibilities. The two-level model provides Beitz’s account of the essential features aspect. For Beitz the essential features of human rights are, first, to impose obligations on the political institutions of states, and secondarily, to create matters of international concern which give pro tanto reason for action by the international community when states fail in their obligations. Beitz’s theory is similar to Raz’s theory in that both treat human rights violations as (pro tanto) reasons for action (intervention), whereas Rawls takes the stronger position of treating human rights violations as requiring intervention. In terms of the qualification standards aspect, Beitz’s theory holds that human rights are “protections of ‘urgent individual interests’ against ‘standard threats’ to which they are vulnerable” (Beitz 2009, p. 110). He defines “urgent interests” as those that would be “recognizable as important in a wide range of typical lives that occur in contemporary societies: for example, interests in personal security and liberty, adequate nutrition, and some degree of protection against the arbitrary use of state power” (Beitz 2009, p. 110). And he defines a “standard threat” as “a threat which is reasonably predictable under the social circumstances in which the right is intended to operate” (Beitz 2009, p. 111). Based on this account of the standards that qualify something as a human right, Beitz is able to justify more or less the list of rights found in international human rights documents. In this respect, his theory differs from the theories of both Rawls and Raz, because whereas they offer truncated lists of human rights which are quite revisionary compared to the list of rights found in the practice, Beitz is able to more or less recognize the list used in the practice.

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Let us pause for a moment to consider a potential objection. Some commentators may object to my claim that Beitz offers a theory of human rights which closely conforms to the list of rights found in the practice. These commentators will likely point to Beitz’s discussion of “hard cases.” These cases concern specific human rights, or categories of human rights, which are recognized in the practice, but that Beitz believes his theory may not endorse. The human rights in question include antipoverty rights, women’s rights, and the right to political participation. More specifically, Beitz suggests that his emphasis on human rights as matters of “international concern” may have some potentially revisionary implications for these areas of human rights. However, I will argue that Beitz’s theory is not in fact very revisionary, and where he claims that it is, he is (mostly) mistaken in drawing such a conclusion. The easiest case is that of antipoverty rights. The potential problem with treating this category of human rights as matters of international concern, according to Beitz, stems from two issues: first, determining which outside agents have reasons to act when states fail in their domestic obligation to fulfill such rights, and second, determining what kinds of reasons for action failure to fulfill these rights give to outside agents (Beitz 2009, p. 163). Beitz suggests that there can be a wide range of sufficient reasons for affluent states to act to reduce or mitigate poverty in impoverished states. Such reasons range from “strong beneficence” (Beitz 2009, p. 167) to harmful interaction, historical injustice, non-harmful exploitation, and political dependence (Beitz 2009, p. 171). This shows that there will not be one type of uniform reason for action provided by these rights, but rather, “an uneven web of disaggregated responsibilities” (Beitz 2009, p. 173). In other words, attributing responsibility to outside agents for ensuring these rights will involve different reasons in the case of different agents, and will depend on the details of particular cases (Beitz 2009, pp. 173–4). The fact that there is a range of sufficient reasons for outside agents to act in reducing or mitigating poverty leads Beitz to conclude that “there are antipoverty rights” (Beitz 2009, p. 173). In other words, while Beitz considers the possibility that his treatment of human rights as matters of international concern might challenge the legitimacy of antipoverty rights, in the end he concludes that his theory does indeed justify such rights. Thus, in the case of antipoverty rights, his theory is not revisionary of the list found in the practice. Moving on to the case of women’s rights, Beitz believes there is no principled problem with such rights, even in societies where those rights conflict with deeply rooted cultural beliefs and practices. This is because men’s and women’s interests are of equal importance, and thus governments ought to, in principle, equally protect both (Beitz 2009, pp. 193–4). But a practical problem with such rights does arise, according to Beitz. The human rights of women

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are concerned not merely with changes in law and policy, but with changes in social beliefs and practices. However, changing law and policy, which is the primary means available to the state, is unlikely to bring about changes in social beliefs and practices. Furthermore, if domestic governments lack the means to enact the necessary sort of change, the international community is even less capable of doing so (Beitz 2009, pp. 194–5). This seems to imply that women’s rights cannot be matters of international concern on practical grounds, because there is no effective form of action for realizing such rights available to outside agents. “A government’s failure to comply with those elements of women’s human rights doctrine that requires efforts to bring about substantial cultural change does not supply a reason for action by outside agents because there is no plausibly effective strategy of action for which it could be a reason” (Beitz 2009, pp. 194–5). Thus, Beitz concludes that since women’s rights fail (for practical reasons) to be matters of international concern, they therefore cannot be legitimate human rights according to his theory. Now let us consider how revisionary Beitz’s theory really is in the case of women’s human rights. First, we should note that Beitz does not intend this argument to apply to the full range of women’s human rights. He says that the majority of women’s human rights “are perfectly general . . . interests in physical security and personal liberty” (Beitz 2009, p. 188). In other words, most areas of women’s human rights represent general interests of both women and men, and thus are perfectly legitimate human rights.13 Beitz singles out a few issues that he believes involve background beliefs and social practices that cannot be changed via law and policy: violence against women in the household, protection against rape, and abuses associated with prostitution (Beitz 2009, p. 194). It is only this limited set of women’s issues that Beitz believes cannot (for practical reasons) be matters of international concern, and thus fail to be legitimate human rights. In short, Beitz does not claim his theory is so revisionary as to deny the legitimacy of all women’s rights, but only a certain subset of such rights. Nevertheless, it can still be argued that in comparison to the practice, Beitz’s theory would be quite revisionary in denying that these important women’s issues are a matter of human rights. However, I do not believe Beitz has correctly construed the implications of his theory in this area. First, he may be wrong to claim that changes in law and public policy are unable to influence the background beliefs and social practices necessary for the realization of the full range of women’s human 13

However, see Hessler’s claim that Beitz’s argument will apply to women’s rights more broadly (Hessler 2013, p. 380).

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rights. Kristen Hessler, for example, points to evidence which shows that changes regarding women’s legal status in Tunisia were accompanied by major changes in women’s general social status and status within marriage (Hessler 2013, p. 381). Hessler concludes that the subordinate social status of women is in part created by public policy, and can therefore be changed by making changes to law and policy (Hessler 2013, p. 382). Empirical evidence, such as that presented by Hessler, shows that Beitz may simply have been wrong to claim that a primary form of action available to the state – changing law and policy – will be unable to influence the background beliefs and social practices necessary for realizing the particular subset of women’s rights that are in question. Second, Beitz acknowledges that the implementation of human rights admits of a wide range of strategies and forms of action (Beitz 2009, pp. 33–42). It is worth remembering that rather than treating human rights failures as simply triggers for “intervention,” as Rawls and Raz do, Beitz treats human rights as matters of “international concern” which generate “reasons for action.” In other words, Beitz does not view failures to realize human rights as simply grounds for coercive or forceful intervention, but instead, as generating reasons to engage in an array of strategies for realizing these rights. He discusses six strategies for implementing human rights: accountability, inducement, assistance, domestic contestation and engagement, compulsion, and external adaptation (Beitz 2009, p. 33). As Hessler argues, each of these strategies of implementation is no less likely to be effective in the case of women’s rights than in other areas of human rights (Hessler 2013, pp. 384–7). In the category of “accountability,” Beitz includes the reporting and auditing processes carried out by the various human rights treaty bodies. This is perhaps the most common means of implementation used within the practice. Hessler points out that states are no less likely to implement women’s rights in response to such auditing processes, than they are to implement, say, social and economic rights (Hessler 2013, p. 385). And if changes in law and policy can affect the social practices necessary for realizing women’s rights, as was suggested above, then the reporting and auditing processes may encourage states to take the necessary actions to bring about such change. For example, in 2001, the Convention on the Elimination of Discrimination Against Women Committee encouraged Egypt to conduct a national survey of violence against women and to provide a reporting process so that more victims would come forward to report rape (Hessler 2013, pp. 384–5). Pursuing such a policy may in fact lead to changes in women’s willingness to come forward and report cases of rape. If that does occur, then the accountability provided by the reporting and auditing process will have contributed to the implementation of an area of

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women’s rights that Beitz believed could not be a matter of international concern. Within the category of “compulsion,” Beitz includes coercive interventions, such as economic sanctions, and within the category of “inducements,” he includes strategies such as economic incentives for compliance. If the concern is a lack of state willingness to take action regarding the implementation of the full range of women’s human rights, there is no reason to believe that in response to economic sanctions or economic inducements, a state would be less likely to take action regarding women’s rights, than it would be to take action toward implementing, say, civil and political rights (Hessler 2013, p. 386). So given Beitz’s acknowledgment that a wide array of strategies or measures can be employed in the implementation of human rights, and the evidence that changes in law and policy can help to influence the relevant background beliefs and social practices, it seems mistaken to claim that there is nothing the international community can do to implement the full range of women’s human rights. Thus, contrary to Beitz’s claim that the full range of women’s human rights cannot be justified by his theory, a closer examination reveals that his theory can in fact justify such rights. Once again, as in the case of antipoverty rights, it seems that Beitz’s theory need not be revisionary of the list of rights found in the practice. Finally, let us turn to the case of the right to political participation. Beitz points out that this right is now generally interpreted as a right to democracy. His main concern with interpreting the right to political participation in this way is that such a right may only be justified in protecting a certain underlying interest (or interests), but not justified in imposing a specific type of institutional mechanism for realizing that aim. He points out that the empirical evidence is uncertain and does not support the claim that promoting democratic political institutions in poor societies will make it more likely that people’s basic interests are satisfied (Beitz 2009, p. 180). Furthermore, he argues that the attempt to impose democratic institutions on a society would violate the society’s right to political self-determination, at least in those societies that have a conception of the common good which they believe is best realized through a non-democratic form of political institutions14 (Beitz 2009, p. 182). For these reasons, Beitz does not believe that a human right to democracy can be justified. While in the case of women’s rights Beitz was concerned about the practical ability to implement such rights, in the case of a right to democracy he is more 14

However, Beitz believes there is even less clear evidence as to whether collective selfdetermination will make it more likely that people’s basic interests are satisfied, so he is not convinced that there is a human right to collective self-determination either (Beitz 2009, p. 185).

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concerned about the justification of this right in principle. Beitz notes that there is now “a pattern of international action” aimed at the development of democratic movements and regimes where they do not exist, and the support and protection of ones that do exist (Beitz 2009, p. 174). And nowhere does he indicate a belief that this action is ineffective. So in practical terms, the international community may indeed be able to promote democracy, and thus it can qualify as a matter of international concern. However, Beitz’s argument in this case is that a right to democracy may not be justified in principle, both because it fails to make it more likely that the interests protected by human rights will be realized, and because it may conflict with other rights. Let us assume Beitz is correct that a human right to democracy cannot be justified in principle, for the reasons that he provides. Even if this is true, Beitz has not rejected a human right to political participation, which is the right explicitly listed in international human rights treatises. He has only rejected the interpretation of this as a right to a democratic form of government. This interpretation has become commonplace in the practice, although it is not a consensus belief (Beitz 2009, p. 174). In that case, Beitz’s position will be to some extent revisionary in comparison with current human rights practice, but not radically so. We can understand Beitz as simply agreeing with the minority of practitioners, who reject this particular interpretation of the right to political participation and render it a non-consensus belief. Furthermore, Beitz’s theory is intended to be prescriptive, not merely descriptive. So it is not surprising if we find it in some ways critical of the practice. After assessing the “hard cases,” we have found that Beitz’s theory merely takes a minority position on the interpretation of a certain human right recognized in the practice, and in the other cases his theory seems fully capable of justifying the rights found in the practice. He either explicitly endorses the rights recognized in the practice (antipoverty rights), or as I have argued, should endorse such rights (women’s rights). For these reasons, I think we are justified in claiming that his theory largely conforms to the list of human rights found in the practice. Now that we have dealt with a potential objection to this claim, let us return to the issue of corporate human rights obligations. We can see that the second element of Beitz’s model holds that states have an obligation to protect human rights against threats from non-state agents that are subject to the state’s jurisdiction. Here Beitz’s model echoes the “state duty to protect human rights” found in Ruggie’s Framework, which requires the state to protect against human rights abuses by business through regulation and adjudication. But does Beitz’s theory prescribe direct corporate human rights obligations? In the third element of Beitz’s model, he states that both state and non-state agents (with the means to act effectively) have “pro tanto

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reasons to assist an individual state to satisfy human rights standards in cases in which the state itself lacks the capacity to do so” and “pro tanto reasons to interfere in an individual state to protect human rights in cases in which states fail through a lack of will to do so” (Beitz 2009, p. 109). I assume that “satisfying” human rights is equivalent to fulfilling them. So Beitz’s theory acknowledges that “non-state agents” can have reasons to both protect and fulfill human rights. However, Beitz’s further discussion makes clear that the non-state agents he has in mind are not corporations, but rather human rights NGOs such as Human Rights Watch and Amnesty International. Indeed, the practice of international human rights can be understood as encompassing the roles played by these non-state agents. But given this clarification of the nonstate agents in question, the third element of Beitz’s model does not seem to include a role for corporate human rights obligations. Furthermore, Beitz goes on to explicitly address the possibility of direct corporate human rights obligations, resisting the idea that such obligations can be derived from an account of the practice. “It is true that there have been efforts to frame human rights principles directly applicable to business firms, but thus far these efforts have lacked the independent structure and regularity to justify considering them as elements of an ongoing global practice” (Beitz 2009, p. 124). This is a revealing statement, and one which I believe holds an important lesson concerning the range of corporate human rights obligations that a political conception will prescribe. Beitz claims that despite efforts to specify direct human rights obligations for corporations, these efforts have lacked certain features that would justify treating them as part of the practice.15 Due to the fact that these efforts fail to qualify as part of the practice, there is no range of direct human rights obligations, narrow or broad, that we are justified in assigning to corporations. Since Beitz’s methodology involves closely considering and interpreting the practice of international human rights, his theory is very practice-sensitive. The implications of his approach become clear when we compare his theory to those of Rawls and Raz. Rawls and Raz employ qualification standards for justifying human rights that yield truncated lists of rights which are quite revisionary of the practice, while Beitz on the other hand, employs a qualification standard that yields more or less the list of rights found in the practice. Indeed, if Beitz’s theory endorsed a list of rights that deviated much from the list found in the practice, he would likely consider this a flaw in his 15

Beitz’s book was written just prior to the introduction and adoption of Ruggie’s framework, so it is unclear whether Beitz would consider this development to provide enough “structure and regularity” to now consider direct corporate human rights obligations a part of the practice.

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theory. After all, his methodology requires that he produce a normative model of human rights which is based on a close analysis and interpretation of the practice. This methodology implies that Beitz’s theory will be rather conformist with the practice.16 An interpretation that takes close account of the practice is also confined by the practice. Since determining direct corporate human rights obligations is, at best, in its infancy, and may have yet to become an established part of the practice,17 a close interpretation of the practice is likely to suggest either that there are no direct corporate human rights obligations or that it is indeterminate whether there are such obligations. Indeed, Beitz’s political conception of human rights takes the former position, because, at least at the time of his writing, he believed that efforts to frame direct corporate human rights obligations lacked structure and regularity, and thus did not constitute a part of the practice. With the subsequent adoption of Ruggie’s Framework by the UN Human Rights Council, it is possible that Beitz would now recognize some form of direct corporate human rights obligations as part of his theory. 10.7 POLITICAL CONCEPTIONS OF HUMAN RIGHTS AND CORPORATE RESPONSIBILITY

I have suggested that Beitz’s comment about direct corporate human rights obligations holds an important lesson as to whether political conceptions entail a certain range of such obligations. The political conceptions of human rights developed by political philosophers have tended to take a specific part of the existing practice of international human rights as their starting point, namely, the role that human rights play in the relations between states. However, as we have seen in our examination of Rawls, Raz, and Beitz, theories of human rights based on a political conception can vary in terms of how revisionary their prescriptions are in comparison to the practice. Beitz’s theory is not very revisionary. But this is an artifact of his methodology, which requires his theory to be derived from a close examination and interpretation of the practice. Rawls and Raz, on the other hand, include some quite

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This assumes of course that the norms underlying the practice and the list of human rights that it recognizes are coherent. It is of course a possibility that one could closely analyze and interpret the practice, and then find that the normative reconstruction is not compatible with the list of rights recognized in the practice. However, this possibility is likely only to arise in the case of a radically incoherent practice. The adoption of Ruggie’s Framework by the UN Human Rights Council may render this no longer true, depending on the criteria one employs for determining whether something constitutes part of the practice.

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revisionary elements in their theories. Up to this point, I have suggested that the revisionary elements of Rawls’s and Raz’s theories derive primarily from the moral standards aspect, which produce lists of human rights that deviate significantly from the list found in the practice. However, we might also think their theories are revisionary in light of the essential features aspect. Both of these theories attribute one essential feature or function to human rights: a criterion for justified intervention in a state by other states or the international community. But it might be argued that the practice attributes more than one essential feature or function to human rights, in which case these theories are revisionary insofar as they focus on just this one feature or function of human rights to the exclusion of others. Beitz, by contrast, treats the essential features or functions of human rights in a broader manner, by holding that human rights first and foremost create obligations for a state with regard to its domestic constitution, laws, and public policies, and secondarily, as providing (pro tanto) reason for action by outside agents if the state fails in its obligations. Perhaps the theories of Rawls and Raz recognize the former element in an implicit way,18 but Beitz explicitly divides the operation of human rights into two different “levels.” Thus, we might say that Beitz attributes at least two features or functions to human rights. Here is the important point for our purposes: the practice can be understood as including more or less of the activities relating to human rights, and this will tend to influence the essential features or functions that a theorist attributes to human rights. For example, Beitz recognizes that human rights can give (pro tanto) reasons for action to human rights NGOs, and thus that the role of such agents is part of the practice, while Rawls and Raz do not seem to recognize the practice as essentially encompassing such agents. If a theorist appeals to a more narrow range of aspects as comprising the practice, for example, only those obligations that are legally binding under international human rights law, then the result will tend to be a more state-centric theory. This narrow conception of the practice is likely to lead to a narrower construal of the essential features or functions of human rights, which in turn makes it unlikely there will be recognition of corporate human rights obligations. On the other hand, if a theorist appeals to a broader range of aspects as comprising the practice, for example the activities of human rights NGOs, then this may result in a less state-centric theory. A broader conception of the

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It seems to follow that a state must have domestic obligations regarding human rights, if violations of human rights are to provide grounds for intervention by other states or the international community. Yet Rawls and Raz seem only to focus on this second function, as a trigger for outside intervention.

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practice is likely to lead to a broader construal of the essential features or functions of human rights, which in turn can make it more likely there will be recognition of corporate human rights obligations. Assume, for example, that a conception of the practice includes the activities of NGOs that monitor and pressure corporations to comply with certain human rights norms. In this case, the conception of the practice that encompasses such aspects may lead to recognition of essential features or functions of human rights that go beyond mere state obligations, to also prescribe corporate human rights obligations. The range of corporate human rights obligations prescribed by such a theory is likely be determined by the norms and expectations involved in the activities that comprise the conception of the practice on which the theory relies. To illustrate this last point, first consider the political conceptions of human rights developed by political philosophers. Raz did not give determinate prescriptions regarding corporate human rights obligations, and this seems to be a result of his theory focusing on just one essential feature or function of human rights, derived from a narrow conception of the practice. Similarly for Rawls (at least on one reading), his theory prescribes no corporate human rights obligations, and this also has to do with the fact that his theory focuses on just one essential feature or function of human rights, based on a narrow conception of the practice. Beitz’s theory, by contrast, recognizes human rights obligations for agents other than states. His theory holds that human rights can create obligations (pro tanto reasons for action) for NGOs. This seems to result from attribution of a wider set of essential features or functions to human rights, based on a broader conception of the practice. Next, consider the versions of a political conception of human rights characterized by Wettstein and Ruggie. While neither of these political conceptions focuses on the role that human rights play in the relations between states, we may nevertheless understand them as appealing to certain aspects of the practice. For the legalistic version, it is inclusion in international human rights treatises that qualifies a right as a legitimate human right. These documents are often thought of as part of the practice. Beitz’s political conception, for example, gives a very prominent role to such treatises when offering a characterization of the practice. However, the political conceptions of Rawls and Raz do not focus on these documents. Rawls and Raz focus on just one aspect of the practice: the role that human rights play in the relation between states on the international level. They then allow this feature or function of human rights to determine the qualification standards (limitations on sovereignty) for identifying legitimate human rights. By contrast, the legalistic version focuses on a different aspect of the practice: international human rights treatises. In the case of the legalistic version, the qualification

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standard aspect is treated as primary. As I discussed previously, when Wettstein’s characterizes the legalistic version, he does not explicitly provide an essential feature or function of human rights. However, I believe that we can interpret the essential feature(s) or function(s) aspect as deriving from the qualification standard aspect, which he does provide. It would seem that on Wettstein’s characterization of the legalistic version, the essential feature or function of the human rights found in international human rights treatises is to create “obligations of non-interference and ‘do no harm’” (Wettstein 2012, p. 745). Again, it remains unclear precisely how Wettstein thinks Ruggie derived the corporate responsibility to respect human rights from those treatises, but Wettstein clearly states that the “political or legal” human rights found in the treatises essentially emphasize negative duties of non-interference.19 Ruggie’s agreement version appeals to universally held social norms regarding human rights as the qualification standard for identifying legitimate human rights norms. One can conceivably think of these social norms as part of the practice, given a quite broad conception of the practice.20 As with the legalistic version, Ruggie’s agreement version does not explicitly state the essential feature or function of human rights. However, I believe that we can once again interpret the essential feature(s) or function(s) aspect as deriving from the qualification standards aspect, which Ruggie does provide. In this case, the legitimate human rights norm in question is the corporate responsibility to respect human rights, from which we can infer that an essential feature or function of human rights is to attribute to corporations an obligation not to harm.21 Thus, while Rawls and Raz seem to allow the essential features or functions of human rights (the role they play in relations between states) to 19

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It may be difficult to reconcile this claim with the treatises and practice themselves, as they very clearly attribute to states an obligation not only to respect the human rights listed in the treatises, but also to protect and fulfill these rights. Nevertheless, Wettstein argues that we need a moral conception of human rights in order to generate positive corporate human rights obligations, because the “political and legal” human rights found in international human rights treatises are focused on negative obligations of non-interference. In fact, Rawls may endorse something similar, insofar as he treats as legitimate only those human rights that all reasonable peoples would endorse. This leads Rawls to reject certain human rights that only liberal societies would endorse, because non-liberal peoples will reasonably reject such rights. Here the claim is simply that assigning to corporations an obligation not to harm is at least one essential feature or function of human rights. This is not to say that Ruggie holds that this is the only essential feature or function of human rights. In fact, the recognition of the state duty to protect human rights from abuses by corporations demonstrates Ruggie’s recognition that an essential feature or function of human rights is also to create obligations for states. However, Ruggie derives the state duty to protect from international law and human rights treatises, not from the agreement theory which he relies on to justify the corporate responsibility to respect human rights. Here I focus only on Ruggie’s appeal to the agreement theory.

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determine the qualification standard for identifying legitimate human rights, the legalistic version and the agreement version allow the qualification standard for identifying legitimate human rights (inclusion in international human rights treatises or universally held social norms) to determine the essential features or functions of human rights. In other words, Rawls and Raz treat the essential feature aspect of a political conception as primary, whereas the legalistic version and the agreement version treat the qualification standard aspect of a political conception as primary. But in all cases, it is appeal to some part of the practice that determines the primary aspect. 10.8 CONCLUSION

Based on our examination of various political conceptions of human rights, we can now conclude that the range of corporate human rights obligations prescribed by a theory is underdetermined by the mere fact that the theory offers a political conception. A political conception of human rights will not necessarily prescribe any corporate human rights obligations, and if it does, not necessarily any particular range of such obligations. Beyond this general conclusion, we can also identify some features of a political conception of human rights that will contribute to determining what, if any, range of corporate human rights obligations is prescribed by the theory. First, a significant factor is which part or parts of the practice a political conception of human rights appeals to. Generally, the part(s) of the practice appealed to will tend to determine its prescriptions. Furthermore, the practice may be used to determine either the essential feature(s) or function(s) of human rights, or to determine the qualification standard(s) for identifying legitimate human rights. In the political conceptions that we examined, one of these aspects was treated as primary, and the other aspect determined by the primary one. Second, the more parts of the practice that a theory appeals to, the more conformist a political conception is likely to be, where “conformist” refers to how closely the theory mirrors current practice. Beitz appeals to a very broad conception of the practice, and this leads his theory to more closely mirror the existing practice of international human rights. As a result, his theory prescribes human rights obligations for a range of agents that play a role in the current practice. For example, according to Beitz, human rights NGOs have (pro tanto) reason for action when human rights violations or failures occur. Although Beitz’s theory does not assign human rights obligations to corporations, this may be due to the fact that Ruggie’s Framework had not been adopted at the time Beitz developed his theory. With the subsequent adoption

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of Ruggie’s Framework by the UN Human Rights Council, Beitz might now revise his theory to prescribe a narrow range of corporate human rights obligations. Rawls and Raz, on the other hand, focus on just one part of the practice, with at least some revisionary implications for the practice. They seem to have no room for prescribing corporate human rights obligations within their theories, despite the adoption of Ruggie’s Framework by the Human Rights Council, because their account of the practice focuses only on the role that human rights play in the relations between states. It should now be apparent that what range of human rights obligations, if any, corporations will be prescribed is determined by a range of factors and choices that a theorist must make. My hope is that this chapter has helped to identify some of the key considerations. The mere fact that a theory of human rights offers a political conception is not among the determinative factors. BIBLIOGRAPHY Arnold, D. G. (2010) “Transnational Corporations and the Duty to Respect Basic Human Rights,” Business Ethics Quarterly, vol. 20, pp. 371–399. Beitz, C. (2009) The Idea of Human Rights, Oxford: Oxford University Press. Griffin, J. (2008) On Human Rights, Oxford: Oxford University Press. Hessler, K. (2013) “Hard Cases: Philosophy, Public Health, and Women’s Human Rights,” Journal of Value Inquiry, vol. 47, pp. 375–390. Karp, D. J. (2014) Responsibility for Human Rights: Transnational Corporations in Imperfect States, Cambridge: Cambridge University Press. Rawls, J. (1999) The Law of the Peoples, Cambridge: Harvard University Press. Raz, J. (2010) “Human Rights without Foundations,” in Besson, S. and Tasioulas, J. (eds.), The Philosophy of International Law, Oxford: Oxford University Press, pp. 321–338. Ruggie, J. (2013) Just Business: Multinational Corporations and Human Rights, New York: W.W. Norton & Company. Sub-Commission on the Promotion and Protection of Human (2003) Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. United Nations General Assembly (1948) Universal Declaration of Human Rights. United Nations High Commissioner for Human Rights, What Are Human Rights? [Electronic]. Available at: www.ohchr.org/EN/Issues/Pages/WhatareHumanRights .aspx. United Nations Human Rights Council, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises: Ruggie, J. (2011) Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework. United Nations Human Rights Council, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations

10. Political Conceptions of Human Rights and Corporate Responsibility 257 and Other Business Enterprises: Ruggie, J. (2008) Protect, Respect and Remedy: A Framework for Business and Human Rights. Wettstein, F. (2009) Multinational Corporations and Global Justice: Human Rights Obligations of a Quasi-Governmental Institution, Stanford: Stanford Business Books. (2012) “CSR and the Debate on Business and Human Rights: Bridging the Great Divide,” Business Ethics Quarterly, vol. 22, pp. 739–770.

11 Socio-Economic Rights Between Essentialism and Egalitarianism Malcolm Langford*

11.1 INTRODUCTION

Socio-economic rights are often considered the hard case for moral theories of human rights. Dragging down the ambition of rising above contemporary social structures and competing conceptions of justice, it is feared that socio-economic rights compromise the universalist human rights project. In Cranston’s (1983, p. 12) early swingeing critique, such rights take human rights out of the “realm of the morally compelling into the twilight world of utopian aspirations.” However, in the recent renaissance of the philosophy of human rights, socioeconomic rights have found a secure place. Within the realm of moral theory, ideas of freedom, dignity, agency, need, and justice among others have been offered as justifications. However, crafting theories of human rights through a purely moral perspective is problematic. Not only is it epistemologically questionable, it risks intellectual myopia by neglecting the insights of practice. I argue that practice- and institutional-oriented theories of rights provide a deeper insight into the values that should drive human rights thinking. This eclectic “political” approach shares some affinities with Nickel and Beitz’s appropriation of the international human rights regime. However, their shallow treatment of legal sources, occlusion of domestic institutions, and cursory treatment of ideas of fairness returns them to essentialist-like theorizing on socio-economic rights questions. Instead, I shall argue that these diverse political approaches reveal better a graduated moral concern with equality. Finally, some scholars in both the moral and political traditions have reiterated conceptual objections to social rights. These complaints typically * My thanks to the editors for comments on an earlier version

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include the positive orientation of social rights and issues of indeterminacy, resource constraints, and justiciability. Yet, as shall be argued, both moral and political approaches to human rights demonstrate that these concerns must be significantly nuanced and, in some cases, rejected. The chapter proceeds as follows. Section 2 considers a range of moral theories and their implications for socio-economic rights. Section 3 analyses the implications of a political approach to socio-economic rights, both as an alternative framework for rights and a reflective mirror for moral theories. Section 4 analyses and re-evaluates the standard array of conceptual objections to socio-economic rights. 11.2 MORAL THEORIES

Moral approaches to human rights are typically grounded in the exogenous and distinctive dimensions of personhood. Endogenous social relations and socio-political context are sidelined in the “search for moral standards of political organization and behavior that is independent of the contemporary society” (Heard 1997, p. 77). In such essentialist theorizing, the natural rights thinking of John Locke has cast a long shadow (Simmons 2001, p. 185); and the most vocal critics of socio-economic rights tend to be immersed in the Lockean tradition. So I begin my treatment of moral theories there, with a review of Locke. This will be followed by competing approaches that share a similar grounding (in the idea of liberty) or different grounding (such as justice, need, agency, and dignity). 11.2.1 Locke’s Shadow According to Locke (1823), rights are those primary goods which can be justified in a state of nature. The goods of particular interest to Locke is a state of “perfect freedom” or “liberty,” such that individuals can “order their actions, and dispose of their possessions and persons as they think fit,” free from the “will of any other man” (Treatise II, chapter II, para. 4). However, the justifications rest on a number of assumptions. A crucial one is that the state of nature begins with “perfect equality.” According to Locke, “all the power and jurisdiction is reciprocal, no one having more than another,” which is evident because everyone is “born to all the same advantages of Nature” (para. 7). Combining this structural condition with the pursuit of freedom, together with notions of desert, Locke arrives at a reciprocal duty of noninterference for a limited set of rights: “no one ought to harm another in his life, health, liberty or possessions.”

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Notably, Locke was not concerned directly with the question of socioeconomic rights. However, his reification and essentialization of liberty is invoked in many attacks on the idea of these rights. Kelley (1998, p. 16), for example, draws on the Lockean era as a prelude to his assault: [T]he individualism of the Enlightenment went deeper. It was not merely the idea that government is the servant of the people, an agent for meeting the needs of individuals. It was also the idea that the individual’s primary need is liberty: the freedom to act without interference, to be secure against assault on his person or property, to think and speak his mind freely, to keep the fruits of his labour.

Likewise, Cranston (1983, p. 12) in his Lockean critique of the Universal Declaration of Human Rights argues that only a limited number of civil and political rights are “sacred”, and that the absence of socio-economic rights represents no “grave affront to justice.” The libertarianism of Nozick (1974, p. 29) leads in a similar direction, with a rejection of positive obligations even though some space is reserved for a limited “freedom from hunger and starvation.” Such a freedom from hunger is connected with the right to life which is unlikely to violate the side constraints of feasibility and non-conflict with other rights, especially justly acquired property.1 On their own terms, there are two problems with these Lockean perspectives. First, it is questionable whether life, liberty, and property exhaust the domain of desired primary goods. It is often forgotten that Locke himself frequently mentioned “health” before liberty and possessions. Locke also endorsed protection from extreme want: “so charity gives every man a title to so much out of another’s plenty, as will keep him from extreme want, where he has no means to subsist otherwise.”2 This right is not derived or grounded in the right to life (compare with Nozick). Instead, Locke appears to base or shape this right (or, technically, obligation) in freedom itself, due to the concern that the wealthy man forces the poorer “to become his vassal.”3 Second, the assumption of perfect equality is difficult to sustain outside the heuristic of the state of nature. Resources are not unlimited and there will be conflicts over ownership.4 Moreover, unequal access to technology, knowledge, and capital and the birth lottery of origin, fortune, and talent will ensure that the distribution of wealth and property is not commensurate with effort. These features provide an advantage to some individuals in the resolution of 1 4

See discussion in Vizard (2006, pp. 31–6). 2 Locke (1823, p. Part I, para. 42). 3 Ibid. Ibid. He assumes that, “No man’s labour could subdue or appropriate all, nor could his enjoyment consume more than a small part.” Land and other resources are presumed bountiful.

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social conflicts, including over property rights and the distribution of the fruits of labor. To take just the first point, Locke’s examples are riddled with a linear understanding of economic productivity. This is clear in the oft-quoted example of the right to the fruits of labor from picking an apple. This conception of labor ignores the reality of capital and technology, which exponentializes the relationship between effort and result, but is not equally distributed. Putting aside the Ricardian or Marxian theory of value, it is difficult to see how Locke could justify differential access to capital and technology as consistent with his starting assumptions. Ubiquitous inequalities destabilize the presumption of equality of power. Indeed, if Locke’s assumptions in the state of nature are to hold, one might need a rather maximalist, radical, or even Marxist version of social rights with which to begin. It is a rejection of these two dimensions of the Lockean account that arguably unite the wealth of alternative and contemporary essentialist theories. First, and intrinsically, the deduction of rights is informed by a broader or different psychological conception of human desire and need. The moral idea of human rights has thus evolved from the very thin conception of the eighteenth century. When the phrase human rights formally entered the lexicon, it was used primarily as an expression of outrage of acts against individuals who shared, with the outraged, their bare and basic humanity (Hunt 2007, p. 22). Since then, the concept has thickened considerably, partly because our conception of the human self has expanded. Thus, as shall be elaborated below, some scholars reconstruct the idea of freedom, while others dethrone the concept and privilege instead justice, need, dignity, or agency.5 Second, and instrumentally, the presumption of prior structural equality between individuals is less present in newer theories of rights. The consequence is that these theories accept that realization of liberty rights may be conditional on the prior or contemporaneous realization of socio-economic rights. 11.2.2 Capabilities and Freedom The idea that socio-economic rights are intrinsic and instrumental to freedom can be found in the works of a number of scholars (Hirschmann 2017; Sunstein 5

For reasons of space, I will ignore consequentialist and utilitarian theories of rights. Sen (1982) notes that any theory of rights will be incomplete without them since our sense of fairness and justice is usually informed by such considerations. For an approach that first builds up prudential and utilitarian arguments and then covers the gaps with non-consequentialist arguments, see Nickel (2007, pp. 54–61). Note also that some dimensions of social rights might also not be fully reducible to an individual interest or requirement of autonomy (Jones 2008, section 4, p. 9). However, these dimensions can be still be classified as rights according to Raz (1986, p. 208).

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2004). The most celebrated example is Sen’s capability theory. In a somewhat republican fashion, the idea of interference is expanded or transformed by a focus on the “process of choice”: freedom is not exercised if a forced choice would have been made in the absence of coercion (Sen 2009, p. 228). Liberty and freedom are also substantively defined as the “opportunity to pursue our objectives,” representing a set of capabilities rather than circumscribed sphere of autonomy. In defining these capabilities, Sen stresses the distinction between the means (which might include primary goods and rights) and the end, individual freedom. Thus, in the case of health care, the aim is not the achievement of health outcomes but rather health opportunities: “a guarantee of basic healthcare is primarily concerned with giving people the capability to enhance their state of health” (Sen 2009, p. 238). He also emphasizes, due to individual and societal variations, that the availability of goods may poorly align with individual capability. A person with a high income but a serious illness or disability cannot be viewed as advantaged merely on the grounds of income. This concern with both freedom and interpersonal variation, as well as the virtues of public reason and debate, led Sen to resist attempts to define capabilities in any detailed fashion.6 Sen does, however, affirm that some capabilities can be affirmed as human rights, which he defines as primarily “ethical affirmations” of what is important. Again, he declines from clearly identifying or delineating the subject – in this case, human rights. In a deliberative register, he argues that the process of declaring rights in constitutions, legislation, treaties, etc. should be one of public scrutiny of all arguments (Ibid., pp. 358, 60–1). His simple requirement is that a right would have to draw on a freedom that “meets the threshold condition of having sufficient social importance” noting generally that the “demands of justice have to give priority to the removal of manifest justice” (Ibid, pp. 367, 259). He notes in particular that the idea of social rights meshes well with “an understanding the importance of advancing human capabilities” (Ibid, p. 381) and Sen has written at length elsewhere on rights to work and food. Some scholars have gone further and attempted to draw out the consequences of the capabilities approach for socio-economic rights. Vizard (2006, p. 141) has sought to demonstrate in a comprehensive fashion that much of the international legal recognition of social rights can be anchored in capability theory. In her analysis, treaties and jurisprudence “support the idea of a capability to achieve a standard of living adequate for survival and development – including adequate nutrition, safe water and sanitation, shelter and 6

Others such as Nussbaum (2000) have set out a list: Bodily Health, Bodily Integrity, Senses, Imagination and Thought, Emotions, Practical Reason, Affiliation, Other Species, and Play.

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housing, access to basic health and social services, and education – as a basic human right” (Ibid., p. 141). Notably, in Sen’s model, there is no central concern for interpersonal disparities in the distributions of capabilities. It is focused on individual’s opportunities and was developed as a response to Rawls’s idea of primary goods. However, Sen (2009, p. 296) does acknowledge that a broader “theory of justice” has to be “alive to both the fairness of the processes involved [in generating and distributing capabilities] and to the equity and efficiency of the substantive opportunities that people can enjoy.” Although he cautions against unifocal distributive approaches that ignore variations in capabilities between individuals. 11.2.3 Basic Justice A common alternative framework to freedom is justice. While Sen uses principles of justice as a sorting mechanism for human rights and equality, others view justice as the principal yardstick for conceptualizing human rights. Most philosophers present justice as a moral given or Kantian imperative. Empirical work in social psychology and economics suggests that justice may also be an individual preference, although unevenly distributed among individuals (Knoke 1988; Pinker 2015, p. 73). In any event, all attempts at foregrounding justice are based on some interpersonal notion of fairness. A prominent example of wedding ideas of universal justice to human rights is that of Pogge. He argues that “an internationally acceptable core criterion of basic justice” would be “physical integrity, subsistence supplies (of food and drink, clothing, shelter, and basic health care), freedom of movement and action, as well as basic education, and economic participation” (Pogge 2008, pp. 54, 55). While these basic goods should be recognized as human rights according to Pogge there are “limits,” because “what human beings truly need is secure access to a minimally adequate share of all these goods” (Ibid, p. 55). As to duties, Pogge’s institutional cosmopolitanism is dismissive of maximalist approaches that would “require efforts to fulfil everyone’s human rights anywhere on earth” (Ibid.). Rather, the theory embraces the libertarian use of negative obligations as the basis for articulating obligations. Yet, moving beyond Lockean theory, the scope of impermissible “interferences” is broadened. Deliberate and intentional acts of interference include participation by individuals in domestic and global social structures which have foreseeable and significant impacts on the rights of others. This structural move overcomes, in essence, Locke’s presumption of perfect starting equality. It acknowledges differences in interpersonal power relations, which may affect an individual’s starting point.

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However, the overall result is arguably more limited than Sen’s model. Sen is focused on the individual in context and agnostic about the relevant duty bearer (something to be determined through deliberation). Instead, Pogge’s neo-Lockean framing of obligations partly limits the scope of obligations, certainly extra-territorially and possibly domestically. It excludes responsibility for poverty’s many exogenous causal factors (e.g. geography) and is based on a highly attenuated idea of our interaction with the “global basic structure” that can be difficult to operationalize. 11.2.4 Basic Needs Socio-economic rights are often articulated as needs, both in the vernacular and in philosophy. Pogge’s approach only draws on the idea of needs (and freedom) in carving out the contours of basic justice. Yet, Heard (1997, p. 117) notes that the idea of needs represents a more powerful universal basis for human rights than freedom, as the latter might “pertain to a particular – liberal – conception of society.” In the account by O’Manique (1990), need is the lodestar. If X is necessary for survival, it is a right. He argues that doubling down on what is inherent, even biologically inherent, helps removes the ambiguity over what constitutes a human right. On first glance, a needs-based approach would imply some form of minimalism, similar to Pogge’s account. But this is not necessarily the case – privileging survival can paradoxically imply strong maximalism. A good example is the right to health. Expensive medicines or health care systems may be necessary to keep people alive. It is in these very cases that ideas of (individual) need and (interpersonal) justice come into direct conflict. Thus, it is not surprising that courts around the world have diverged on this question when interpreting the right to health – revealing different preferences over need and justice (see discussion of cases in Yamin and Gloppen (2011); Langford (2014); and Jeff A. King (2012)). Moreover, the idea of need can be especially elastic. Whereas the “belief that survival is good is virtually universal” (O’Manique 1990) it is not always immediately apparent what this entails: For instance, O’Manique develops his theory far beyond the notion of survival and in the direction of “the full development of human potential”, a move not dissimilar to the idea of a “life project” developed by the Inter-American Court of Human Rights.7 Thus, a concern with survival of a human being implies support for their development in life. O’Manique takes the idea even further than the court. 7

On the Inter-American Court’s conception, see Melish (2008).

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The range of elements to be included is: “the need for association with other human beings, for self-expression, for some control over one’s destiny, and even the need for love and for beauty – can be observed and even empirically confirmed within the social sciences and psychology” (Ibid., p. 481). While the empiricism of this perspective is to be applauded, O’Manique seems to stretch the idea of survival-based human rights to the point of snapping. As no need appears too small or great to be classified as a human right, one risks missing the point of the moral exercise (articulating a non-negotiable set of moral standards). Moreover, if some degree of determinacy is required for the identification of duties and duty bearers (see Section 4), then some needs would be excluded from a standard rights theory. In light of these substantive and conceptual limits, a needs-based approach would point generally in the direction of a minimum or adequate threshold for social rights. 11.2.5 Agency Griffin’s agency-based account provides another alternative. It is particularly interesting because he draws together different ideas into a single and relatively coherent and somewhat historicized theory. In a partly “political” manner, he begins by drilling down on the notion of human rights that emerged at the end of the Enlightenment, which he argues had undergone little transformation since then: the “idea is still that of a right we have simply in virtue of being human” (Griffin 2008: 13). He then moves deeper into the Enlightenment discourse, as well as everyday reasoning about human rights, to try to uncover what are the criteria for invoking this right. He argues that the red thread is the protection of “our human standing . . . our personhood,” which we value “often more highly than even our happiness” (Ibid., pp. 33, 32). Griffin translates this idea of personhood as agency, or more precisely, normative agency: the ability to deliberate, assess, choose, act. His most incisive example concerns torture. He argues that the primary aim of torture is not to cause pain but rather undermine “someone’s will, getting them to do what they do not want to do” (Ibid., p. 52). Independently of Sen and Nussbaun, Griffin enlists the idea of capability, as well as purposiveness, to fill out his notion of agency. In order that agency is meaningful, a person must be “capable” of choosing a path through life without control or domination by others (autonomy), with real choices (meaning a minimum provision of information, education, and resources), and be free to pursue what is worthwhile (liberty). But unlike Sen, he retreats partially to the condition that rights must exist in “states of nature.” Human rights must

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be relevant in a “traditional medieval hamlet” (p. 49). However, Griffin takes a much more generous approach to the agency of residents in such a hamlet: such individuals would want sufficient autonomy, liberty, and minimum provision over authoritarian rule and hunger. While acknowledging that social rights are “controversial,” Griffin largely embraces them: they meet his agency and practicability requirements. As to agency, they are “empirical” necessities for autonomy and freedom – and thus of a second-order value – but are “logically” necessary since they are intrinsic to agency itself, the exercising of it (Ibid., pp. 180–1). Yet, in his discussion of international law, Griffin grapples with the thickness of certain legalized human rights standards. He remains skeptical to maximalist demands, for example the right to the highest attainable standard of health in international law (Ibid., p. 208). 11.2.6 Human Dignity A final and increasingly popular approach is to ground rights in human dignity. In Nickel’s (2007) pluralistic articulation of four key principles of human rights, which include basic social rights, he notes that human dignity is the only notion that could fully and uniquely support them all.8 Human dignity emerged separately from the idea of human rights but since the end of the Second World War the two “have increasingly become fused” (Donnelly 2009). It is cited at the beginning of virtually every major human rights instrument. The connection between dignity and social rights is not difficult to make. The lack of social rights, or the manner in which they are realized, may engender feelings of powerlessness, humiliation, domination, and debasement, which damage self-worth. This experience of indignity may be internally generated (the mere denial) or it may be relational (denial before others or the comparison with others). These two dimensions makes it an attractive theory since it opens for both a universalist and situated conception of social rights. It recognizes a “distinct personal identity, reflecting individual autonomy and responsibility” but also “embraces a recognition that the individual self is a part of larger collectivities” (Schachter 1983, p. 851). Clearly, a denial of a minimum level of social rights, including access to decent work, would be inconsistent with the notion of human dignity: “Few will dispute

8

They are the secure claim to have a life, the secure claim to lead one’s life, the secure claim against severely cruel and degrading treatment, and the secure claim against severely unfair treatment. He “reject[s] the view of many that human dignity is found exclusively in human agency or autonomy” (Nickel 2007, p. 66).

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that a person in abject condition, deprived of adequate means of subsistence, or denied the opportunity to work, suffers a profound affront to his sense of dignity and intrinsic worth” (Ibid, p. 851). Likewise, the means by which social rights are realized must not be characterized by domination or debasement. Yet, it must be asked whether dignity can ground a broader and more equityoriented conception? Liebenberg (2005, p. 1) claims that “Human dignity as a relational concept requires society to respect the equal worth of the poor by marshalling its resources to redress the conditions that perpetuate their marginalisation.” However, it is unlikely that human dignity might operate fully in this way: it seems most powerful as a principle that addresses self-worth rather than equal worth. Alone, and with the adjective “human,” it will tend toward a minimalist and truncated view of rights9, particularly if the emphasis is on humiliation rather than equal status, freedom rather than material outcomes.10 Schachter’s observed these dilemmas in 1983. He noted that “relations of dominance and subordination” and “great discrepancies in wealth and power” would be “antithetical to the basic ideal” of human dignity, but pointed out that “such egalitarian objectives cannot be realized without excessive curtailment of individual liberty and the use of coercion.” He concluded that the “far-reaching implications” of human dignity have “not yet been given substantial specific content,” a comment that might remain pertinent. 11.2.7 Reflections on Essentialist Theories Post-Lockean essentialist theories of human rights tend to be remarkably similar on the question of social rights. By enlarging or displacing the freedom as the guiding norm and/or removing the assumption of structural equality, the deduction of socio-economic rights proceeds in a reasonable and convincing fashion. However, this approach only advances a constrained set of social rights – envisaging a bare minimum of social rights or a higher noncomparative threshold such as adequacy. More maximalist and equityconscious approaches tend to stretch the conceptual apparatus and it is rare to find the word “fair” among the verbiage.11

9 10

11

Indeed, Liebenberg buttresses her account with Nussbaum’s freedom and capability theory. For instance, in articulating the idea of a right to sanitation, a UN Special Rapporteur tends to reserve the dignity argument for particular aspects of the denial: “being forced to defecate in public is an affront to human dignity,” UN Press Release, 18 November 2008. A partial exception is Nickel’s (2007, p. 65) synthetic theory, which postulates as one of four secure claims: a guarantee against “severely unfair treatment.” However, the one example given concerns fair trial rather than interpersonal fairness.

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Which of the alternative versions – freedom, justice, need, agency, dignity – is the most convincing is not my concern here. I am not seeking in this chapter to articulate a distinct moral theory of social rights.12 The prime aim is to demonstrate that social rights can be justified within diverse and prevailing theories of rights. Indeed, it is doubtful whether the strategy of the “hedgehog,” the pursuit of a “single, central” idea (Berlin 1993, p. 3) is particularly advisable in justifying or delineating rights. A pluralistic approach is usually necessary since solitary grounds will often look “thin and vulnerable” in the “limelight” (Nickel 2007). Notably, the approaches described above borrow and steal from each other in order to delimit or expand the sphere of human rights. Sen’s freedom-based theories use justice as a criterion for determining human rights, while the agency- and justice-based theories employ freedom and need for the same purpose. In that sense we may have moved no further than the committee of philosophers assembled by UNECSO during the drafting of the Universal Declaration of Human Rights. They were able famously to reach consensus, but on the condition that members refrained from articulating their reasons. 11.3 POLITICAL THEORIES

Moral approaches provide clear deductive templates for rights theorizing but their epistemological and ontological foundations are doubtful. As to epistemology, why should a particular scholar (Locke, Pogge, Griffin) or a particular historical period in one part of the world (the Enlightenment in Europe) determine how we justify and delimit human rights? As Nickel (2007, p. 9) argues, the Universal Declaration, which contains socio-economic rights, has been “amazingly successful in establishing a fixed worldwide meaning for the idea of human rights.” Buchanan (2010, p. 683) questions the validity of the “one-way” reconstruction of international human rights standards by moral theory scholars. A moral logic can simply assume that if there are elements of law that cannot be supported by one’s theory of human rights, it is the law “that must change.” As to ontology, it is not clear why moral theorizing has confined itself to analyzing the rights of individuals without any significant reference to their social relations. No one is an island. The situatedness of human existence 12

An example of such approach is Bilchitz (2007). In seeking to justify judicial review of the minimum essential level of social rights, he draws on Gewirth (1978) and purpose-based values, developing a theory that mixes contractarian and agreement-based arguments. But the risk is that the resulting theory of judicial review is contingent on the particular theory of human rights.

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and legalization/institutionalization of rights means that it may be legitimate to take into account the nature of polities in which individuals live in considering the nature of their human rights. It is not immediately clear that socio-economic rights cannot be reduced to bare and mere noncomparative thresholds. As Dworkin (1977, p. 367) noted long ago, a social right can be conceived as a threshold minimum, a relative equality claim, or even strict egalitarianism: it might mean a claim to “not less welfare than some specified fraction of the welfare of the best-off person (or group); or possibly, to exactly as much welfare as any other person (or group) has.” Many of these claims are relative and have been institutionalized. A question arises as to whether they provide an alternative theory of social rights or a correction to moral theories. This section therefore proceeds by looking at two different but complementary political approaches: international practice and domestic institutionalization. 11.3.1 International Practice International practice provides both a “departure point” and a “deliberative forum” for developing theories of human rights. As outsiders, philosophers tend to take the former approach while lawyers, as “insiders,” tend to prefer the latter. Beginning with practice as a departure point, the philosopher Beitz (2009) draws on the post-1945 international human rights regime and the discourse of the global community.13 He defends his choice empirically by pointing to the startling omnipresence of global human rights practice and instrumentally as its “norms seek to protect important human rights interests against threats of state-sponsored neglect or oppression which we know from historical experience are real and can be devastating when realised” (Ibid., p. 11). Within it, Beitz discerns a “practice” through which its members “recognise the practice’s norms as reason-giving and use them in deliberating and arguing about how to act” (Ibid., p. 8). However, he identifies some pertinent criteria within this tradition which he elevates to a normative level. Human rights are “requirements whose object is to protect urgent individual interests against certain predictable dangers . . . under typical circumstances of life in a modern world order composed of states” to which “political institutions” must respond (Ibid., p. 109). 13

Beitz is also discussed by Corrigan, Hessler, Mu¨ller, and especially Karlsson Schaffer in this volume.

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This account is largely based on the notion of human personhood but the criteria of urgency and modernity clearly reflect a constructivist perspective. This constructivism allows him to relax the strict requirements of universal essentials and the assumption of a static human nature. For Beitz, “an urgent interest is not necessarily an interest possessed by everyone” (Ibid., p. 110). It is sufficient if the interest is significant enough to be recognized across “a wide range of possible lives” and, absent protections for the right, institutions will act in ways that “endanger this interest” (Ibid., p. 111). Human rights are not for the medieval hamlet but for the modern world. Beitz endorses the idea of social rights, labeling them “anti-poverty rights.”14 With this descriptor, it is not surprising that he finds that the primary duty is to secure a certain “threshold” of well-being (Ibid., p. 161). He adopts the standard of “adequacy” from Article 25 in the Universal Declaration of Human Rights, noting that such a threshold is a “noncomparative standard of wellbeing” as it does not “import equality as a value,” unlike rights to equal treatment of the law, voting, and access to public position (Ibid., p. 162). However, Beitz’s threshold is not one of pure minimalism or survival. Moreover, he notes that it does not exclude a domestic conception of distributive justice in which inequalities should be narrowed. On extraterritorial obligations, Beitz asserts that international law resolves some of the puzzles over the relevant duty bearers, particularly through Article 2(1) of the ICESCR and Article 25 of the Universal Declaration on Human Rights. He concludes that there is a negative and facilitative “duty to cooperate internationally to remove obstacles or disincentives for local governments” (Ibid., p. 162). He is more cautious, however, on the idea of a duty to “contribute a system of international transfers,” envisioning instead a conditional, contextual and consequentialist obligation (Ibid.). Beitz’s account suggests that the international human rights regime should be constrained to a single underlying logic. But it not clear why space is not allowed for other deliberative processes, which might produce expressions of human rights which are less coherent and grounded more firmly in historicized experiences of injustice and degradation or political aspirations for a better world.15 This raises a new challenge: if we relax predetermined substantive demands for any putative human right can we still emerge with a coherent theory? Risks abound in the jungle of international relations. Some scholars warn that we should be particularly skeptical about the quality of diplomatic endeavors (see, e.g., Griffin (2008); Nickel (2007); Cranston 14 15

He largely ignores labor rights. See the chapter by Karlsson Schaffer in this book for a similar critique.

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(1973)). However, the widespread involvement of different states, regions, and non-state actors does provide a particular form of both competence and legitimacy (see, e.g., Glendon (2001)). Such recognition of pluralism points to more procedural or deliberative approaches that take the processes behind international practice more seriously. An example of this is Alston’s claim that the General Assembly is the preferred deliberative body for articulating what counts as a human right (and often its general scope). The argument is partly legal but also practical. Alston (1984) eviscerates philosophers for failing to resolve ambiguity in philosophical reasoning over rights. In discussing the adoption of the Universal Declaration, he notes that, “For the first time in history, at the international level, a final arbiter had emerged in an area where conflicting ideologies, cultures and interests had previously made the prospect of general agreement seem far beyond reach and even utopian” (p. 608). However, he argues that some basic process criteria must be met for the purposes of quality control: preparation of a background study, a multi-stakeholder consultation process, and involvement of other relevant UN organs in a phased deliberative process. Alston also suggests that there must be some sort of experimentation at the national level before rights are ready to mature at the international level. In the case of social rights, almost all contenders would meet this moderate demand: i.e. endorsement by the General Assembly in the wake of a deliberated process. A significant number of social rights were included in the Universal Declaration and expanded slightly in subsequent treaties which were adopted by the General Assembly, in particular ICESCR, CRC, and CRPD. The only real controversy has been the recognition of the right to water after the Committee on Economic, Social and Cultural Rights implied it from Article 11 of the ICESCR in 2002 (Tully 2005). The right had been recognized many times by states in various international conferences and declarations but without a formal process in the General Assembly (Langford 2006). This was rectified in 2010 when both the General Assembly and the Human Rights Council recognized water (along with sanitation) as a right, which was preceded by a number of background studies.16 Moreover, long-standing international human rights treaties containing social rights have been ratified by almost all states.17 Although the United States has not ratified any of these key treaties, there is an argument that social 16

17

UN General Assembly, The human right to water and sanitation (Sixty-fourth session, 2010) U.N. Doc A/64/L.63/Rev.1, para. 1; UN Human Rights Council, Human rights and access to safe drinking water and sanitation (Fifteenth session, 2010) U.N. Doc. A/HRC/15/L.14. 83 to 99 percent of states have ratified long-standing treaties containing social rights. As at February 13, 2013, the figures are, respectively, 160 state parties for the ICESCR, 193 for the

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rights have secured some place in international customary law (see overview of alternative arguments in Langford, Coomans, and Isa (2013)). These legal developments have been strengthened by growing and considerable institutional equality. UN Special Rapporteurs have been appointed for many ESC rights while the human rights treaty body committees have issued interpretations which outline elements of socio-economic rights and subsequent duties, which have met with little direct resistance from states. A individual complaint mechanism was also created for the ICESCR in 2008, mirroring the longstanding mechanism for the ICCPR. However, in terms of “institutionalization” in the form of adjudicative mechanisms, there is obviously a degree of variance between states in terms of constitutionalization and ratification of the new international complaints mechanism for socio-economic rights, while policies and culture diverge further. But this raises the question as to whether institutionalization or legalization should represent strict deliberative criteria for human rights in the first place: one of the purposes of human rights standard setting is to catalyze legislative, institutional, and social change. Nonetheless, the legalization of a number of these socio-economic rights has attracted criticism from philosophers, even those that adopt a political approach. Some articulations of socio-economic rights seem too expansive. Either the issue is not of sufficient importance or the level of realization is pitched at too high a level, and certainly above adequacy. In the case of the Universal Declaration, derision is commonly directed at the right to “periodic holidays with pay” as part of the “right to rest and leisure” in Article 24 (see, e.g., Cranston (1983, p. 13); Buchanan (2010)). In the case of the ICESCR, the concern is substance. Article 12 contains the “enjoyment of the highest attainable standard of physical and mental health,” and Article 11 adds the right to “continuous improvement of living conditions” to the right to an adequate standard of living.18 In addition, some of the labor and health rights in the European Social Charter standards have been described by Nickel (2007, p. 139) (often placed in the political camp) as simply goals or potential means:

18

CRC, 187 for CEDAW, and 175 for ICERD. The denominator is 195 states, which is a common figure for the number of states in the world and all 195 states have ratified at least one human rights treaty. Even the recent CRPD has been ratified by 65 percent of states: 127 parties (as at February 13, 2013). It has also been questioned whether a right to higher education in Article 13 and a state duty to make it progressively free is sufficiently important. However, the right in Article 13 is restricted to equal access: “Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.” Only primary and secondary education are envisaged as being made available to everyone.

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The European Social Charter includes human rights to vocational guidance, annual holidays with pay, and “protection of health” that aspires to “remove as far as possible the causes of ill-health . . . these standards go far beyond the conditions of a minimally good life.

The tendency among philosophers (moral and political) is thus to “trim” these more expansive aspects. What should be the proper response to these critiques? Even if we accept a “deliberative forum” approach that is heavily weighted toward process, it might be reasonable to expect a minimum degree of coherence in any legal instrument or sufficient modesty in a document titled “human rights.” There are four ways forward. The first is to treat these seemingly obese rights or their phraseology as an embarrassing mistake, a relic from an age of excessive social democratic optimism, and quietly sweep the untidiness under the carpet and ignore it. The CESCR almost goes down this road in relation to the right to the continuous improvement of living conditions. In its various general comments concerning housing, food, and water in Article 11, it mentions this phrase only once, in General Comment 4. However, feigning ignorance seems much too like adjudicative abdication, a purely political approach to legal text. The next three alternatives seem more fruitful. A second approach is purposive interpretation, which resembles the trimming strategy of philosophers. The text is read in light of the objectives of the treaty, an acceptable method of interpretation in international law. Social rights would be read consistently with the modest objectives that generally underlie human rights and are routinely placed in preambular paragraphs. The CESCR makes this move in the case of health: it begins General Comment 14 by explicitly subjecting the right to the standard of dignity in its opening sentence.19 It expresses reticence about the more expensive elements of tertiary health care20 and focuses the interpretive comment on medicines deemed “essential” by the WHO; basic, universally needed health care (e.g. maternal health care); and the relatively affordable and basic underlying determinants of health such as water, sanitation, and food. This move brings the right to health into line with the CESCR’s general jurisprudence, and its dominant concern: ensuring excluded groups reach a feasible threshold level of the rights as soon as possible. 19

20

“Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.” General Comment 14, The right to the highest attainable standard of health (Twenty-second session, 2000), U.N. Doc. E/C.12/2000/4 (2000) (CESCR). Ibid.

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A third approach is to respect legally the inclusion of these maximalist elements but acknowledge that they do not reflect human rights. In the case of the European Social Charter, this is relatively simple. It is not clear from the text of the treaty that it is purporting to articulate human rights, at least in a traditional sense. The social rights are nowhere described as human rights, and it is only in the preamble to the 1996 Revised European Social Charter that one could possibly make such a link.21 In the case of the ICESCR, such a sleight of hand is not possible. The idea of human rights is ubiquitous in the text. Nonetheless, one could accept that some of the expansive dimensions of the treaty provisions are citizens’ rights and legally apply them as such. There is no problem in articulating citizens’ rights in an international treaty if the primary obligations are between a state and their citizens and residents. A fourth approach seeks to identify the purposes behind the wording. Like the third, it takes the text seriously but seeks to reason more deeply about its rationale. Buchanan (2010: 683–4) makes precisely the same point about human rights treaties. He notices that egalitarianism is a constant feature across all rights.22 They are ascribed to “all persons,” demand “robust equality before the law,” “encompass social and economic rights that can reduce material inequalities and indirectly constrain political inequalities,” guarantee the right of citizens “to participate in their own government,” and “contain rights against all forms of discrimination.” And, unlike Beitz he specifically notes that even the word “adequate” opens up for a “social comparative” understanding of social rights. Now, the most ridiculed socio-economic right cannot be saved on this basis: periodic holidays with pay. It is not the idea of rest or periodic leave that is the problem. It is that the right is inordinately precise and specific: there are multiple ways to achieve the inherent objective of ensuring a right to adequate standard of living during any reasonable period of rest leave. Equally, the right lacks universal application: it is largely irrelevant to non-wage livelihoods (Cranston 1983, p. 13). Rights such as vocational guidance suffer the same sort of problem. However, result-oriented rights may survive. If we ask why we should be concerned with the continuous improvement of living conditions or the highest attainable standard of health, the simple answer might be disparities 21

22

It states in part that, “Recalling that the Ministerial Conference on Human Rights held in Rome on 5 November 1990 stressed the need, on the one hand, to preserve the indivisible nature of all human rights, be they civil, political, economic, social, or cultural and, on the other hand, to give the European Social Charter fresh impetus.” Karlsson Schaffer also makes this point in his chapter in this volume.

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or substantive equality of opportunity. The problem with non-comparative thresholds is that they say nothing about a society characterized by extreme inequality. The drafters of these conventions might have been reasonably and legitimately concerned about this. There seems no inherent reason why a global text cannot say anything about who shares in social, economic, and medicinal progress, whether such a text is based on human rights grounds (dignity but also equality) or citizens’ rights concerns (such as equal status or luck egalitarianism). Even a more modest equality of opportunity can be undermined in these situations, for example through intergenerational transfers between advantaged families. In hindsight, it is notable that the first mention of equity by the CESCR comes in the two sentences that precede its only mention of the right to continuous improvement of living conditions: “States parties must give due priority to those social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others.”23 While the citation could be read as equating “unfavourable conditions” with “inadequate conditions,” the sentence evinces a clear concern about disparities in their own right. This pattern emerges again when the Committee comes to interpret the right to health. Equity is mentioned five times. It is partly a negative equity: the costs of accessing health care should not be disproportionately borne by the poor.24 It is also a positive equity: ensuring that the disadvantaged attain a fair share of health care and services. Thus, the highest attainable standard is not understood as requiring the devotion of all a society’s resources to healthcare and longevity but is understood as requiring greater equitable realization. Given the amount of resources available for health, the state should strive for similar health outcomes for all, narrowing health inequalities. This discussion of alternative approaches to these more expansive provisions of the ICESCR is somewhat provisional. The principal point is to affirm that international practice-based approaches which produce more maximalist outcomes can be understood within a human rights framework.25 We now turn to a different type of political approach.

23

24 25

General Comment 4, The right to adequate housing, (Sixth session, 1991), U.N. Doc. E/1992/23, annex III at 114 (1991) (CESCR). General Comment 14, The right to the highest attainable standard of health para. 12(b)). Equity is also embedded in the article on gender equality (Article 3, ICESCR) and the equitable access to higher education (Article 13, ICESCR).

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11.3.2 Domestic Institutionalism It is notable that leading moral theorists privilege not only the political thought of the seventeenth and eighteenth centuries but the emergent and rather libertarian laws and institutions of the time (the English Bill of Rights, American Bill of Rights, the ascendant English parliament and US Supreme Court). However, some theories of rights begin with the nineteenth and twentieth centuries. T. H. Marshall’s (1964) account of the rise of civil, political, and social rights is probably the most well known. To be sure Marshall’s account can be equally accused of selection bias. It describes a particular process in the West, which has not been fully replicated elsewhere. However, the advantage of studying the domestic institutionalization of rights provides an opportunity to understand the deeper ideational processes at work in practice. The other advantage of studying Marshall is ontological – he foregrounds social relations and status, which should give us pause when theorizing about human rights. Although his account is primarily sociological, an account of the historical rise of citizenship and constituent rights, it contains an underlying normative argument (King and Waldron 1988, p. 422), and is often treated as such in political debate (Powell 2002). The fundamental idea is that full citizenship is a status and outcome to which members of a political community are entitled, and it is constituted by civil, political, and social rights. In his words, “Citizenship is a status bestowed on those who are full members of a community. All who possess the status are equal with respect to the rights and duties with which the status is endowed” (Ibid, p. 92). Marshall does not spell out in significant detail why status should be privileged as the normative lodestar. He mentions though the indignity of difference: the “stigma” of exclusion, the unfairness of elite “privilege,” and the importance of living a civilized existence consistent with the “standards prevailing in the society” (Ibid., p. 72). In doing so, Marshall’s sociological perspective is apparent, focusing attention on the importance individuals attach to relative status and not simply material dimensions of income and social goods and services.26 Status is defined as “a position in a social system” which “can be imagined only in terms of relationships,” on the basis of objective or subjective criteria (Ibid., p. 203). The status of citizenship does not equate with a particular or desired social status such as a position on a prestige scale or structured ranking, rather an acceptable equality of status.

26

Many economists now concede that human behavior is just as motivated by social status (Rege 2008).

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Marshall’s status-based account of rights is buttressed by reference to a number of other intrinsic grounds: civil and political rights are justified by the demands of freedom and liberty and social rights by the need for material dignity – a “civilized life.” He also gestures toward more instrumental reasons for social rights such as the benefits of education and health in developing human capital and thus prosperity. In my view, he could have also added ideas of luck egalitarianism and the legitimation of state coercion, which are both central to Rawls’s (1971) citizenship-based theory of justice. In Marshall’s conception of social rights, status is to be reconfigured by legislative and programmatic interventions that seek partial decommodification: the “economic value of the individual claimant” should not determine their social citizenship.27 Yet, the full implications of equality of status for the substance of social rights remain somewhat disputed (see Powell 2002). While Marshall offers both minimalistic and maximalist perspectives, the account clearly requires moving beyond a mere minimum. Equality of status involves a threshold of adequacy, equality of opportunity, and more equitable outcomes. This is clear in his opening gambit: “I mean the whole range, from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilized being” (Marshall 1964, p. 72). However, Marshall evinces a particular concern for equity, a reduction in disparities. While this can be progressive over time, greater equalization is to be driven through the creation of “an image of ideal citizenship against which the achievement can be measured” (Ibid., p. 84). As to the eventual end, Marshall does not press for equal outcomes: inequality “should not cut too deep,” and “Equality of status is more important than equality of income” (Ibid., p. 103). The result is that Marshall evinces a strong preference for forms of social provision and regulation that are universal and inclusive rather than targeted and meanstested. To these demands, Marshall makes two qualifications: he acknowledges the importance of first addressing the basic minimum (the “basement of the social edifice”) and that achievement of full social citizenship need not be immediate (it is dependent on resources) (Ibid., p. 86). As to the minimum, he cautions that most endeavors of this nature are not citizenship-based but rather aimed at making the “class system less vulnerable to attack” (Ibid.). Minimalistic provision should instead be part of a movement toward full social citizenship and social rights as permitted by available resources and as shaped by social context. Today, Marshall would probably also add a third qualification: social 27

On de-commodification, see discussion of Marshall in Esping-Andersen (1990,, pp. 21–23).

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rights should be shaped by active citizen participation and accommodate difference. The shape of the emerging welfare state in the middle of the twentieth century gives a slight paternalistic ring to Marshall’s vision of social citizenship.28 Up to now, the question of who is a “citizen” has been bracketed. This has been intentional. The point has been to emphasize that the core of citizenship conceptions of rights are not ethnic, legal, territorial, or national but stem from the social fact of situated selves in political communities. This partly addresses a common critique of citizenship-based approaches for civil, political, or social rights: that they are overly exclusive and thus may be difficult to universalize and treat as human rights.29 Like the inclusion of elements of egalitarianism in international human rights treaties, it suggests that status equality may be a strongly universally felt preference. However, transposing social citizenship rights to the universal level in full has its problems. While globalization has opened the space for new orderings of status and belonging, few individuals conceive of their social identity and worth in global terms. Most transnational positioning is not done by individuals but by various collective entities – respective comparisons between states, between regions, between corporations, etc.30 A conscious resistance to the export of a domestic-based political theory to the global level comes from Rawls. He notably declined to transpose his relational-based theory of justice to the international plane. Instead, his Law of Peoples has a distinctly communitarian flavor with only a weak international duty of assistance. The empirical premise is that poverty is essentially, and almost categorically, “endemic” or endogenous, and therefore the sole responsibility of the state concerned (Rawls 1999, p. 108). Yet, even these objections are not fully solid. While one must be cautious about externalizing responsibility for poverty at home, and the persistence of poverty in middle-income countries suggests the importance of national political determinants (Sumner 2010), Rawls’ categorical premise appears to rest on somewhat tenuous empirical grounds (Pogge 2008). And normatively, it ignores the exigencies of a global birth lottery, which is even more 28

29

30

Although the republican Pettit (1997) notes that Marshall’s account offers a plausible perspective, as it is firmly rooted in a historical experience of struggle. Crowley (1998) is probably correct to argue that the nation-state is essential to this account: “The conclusion is not that a Marshallian framework cannot be applied in a postnational context, but simply that nothing in Marshall provides any authority for doing so” (p. 175). Navin (2011, p. 403) makes a similar point: “nor is it clear whether such [international] inequalities would undermine the self-respect of those persons and societies that are relatively disadvantaged from an international point of view.”

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pernicious than a national one. As Milanovic (2009) has found, the global Gini coefficient of inequality of 65–70 is much higher than average national inequality. Thus, simply on the basis of global luck egalitarianism, Caney (2001, p. 114) makes the claim for a global equality of opportunity: “Persons should have the same opportunity to achieve a position, independently of what nation or state or class or religion or ethnic group they belong to” where positions are commensurate across societies. Gore (2013) provides an alternative: the aim is that all individuals should be able to share an adequate standard of living, an idea of global social rights. Moreover, from the perspective of legitimating coercive power, the world’s most oppressed and poorest individuals possess the least power of exit from their states and are arguably subject to a global basic structure, analogous to a domestic one, that determines their life chances and opportunities. Føllesdal and Beitz argue that this structure would provide justifications for justice principles that go toward some level of global redistribution and global democratic participation. Global institutions – composed of states but also other actors – have a “pervasive” impact on “individual life chances and preference formation” (Føllesdal 2011, p. 53). Various versions of a global difference principle have been proposed that would require international wealth transfers or taxation of international transactions or the application of the least-advantaged principle in decisions by international institutions or states in prioritizing development funding or making decisions about domestic policy (e.g. agriculture) (Navin 2011, p. 402). The problem though with these arguments is identifying who is to make these transfers and trade-offs and what happens when the domestic and global difference principles conflict: if the least-advantaged in a domestic society have to make the sacrifice for the least-advantaged elsewhere. Here, the challenge of specifying duty bearers for positive obligations truly comes to the fore. The tendency to search for simply an immediately realizable global minimum core should be resisted: imperfect duties may require establishing standards by which more privileged states provide assistance, some of which exist in international law while others are nascent.31 The point here, though, is not to resolve the debate. Rather, it is to indicate how a normative conception of citizenship in an actual global context requires one to rethink what might be just or fair.

31

See analysis of international law by various authors in Langford, Vandenhole, Scheinin, and Genugten (2013).

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11.3.3 Reflections on Political Theories While lacking in full coherence, political approaches to theories of rights are generally more grounded in their epistemology and demonstrate what is feasible as a discourse, law, or institution. Of particular relevance to social rights is that political approaches are less cautious than moral rights about pushing the envelope on questions of scope. There is a tendency to embrace a more robust and egalitarian conception of social rights, domestically and even internationally. Of course, there are limits. The full international practice of social rights is contested by some scholars and states, while Marshall’s conception of social welfare rights has not been fully embraced elsewhere with equality of status less prominent in some corporatist and liberal versions of welfare states. Yet, this broader egalitarian dimension of social rights in political approaches suggests that moral approaches should be more reflexive. It suggests, at the least (1) an adequate not a basic level of socio-economic rights can be justified and (2) very gross material inequalities are a human rights concern. In this respect, it is worth observing the emergence of the recent sustainable development goals. Some northern states resisted a target for inequality at the domestic and international law. Yet, in the end, a broad campaign characterized partly by human rights language led to the inclusion of Goal 10 on Inequality (Langford 2016). The first target specifically addresses the reduction of disparities although its ambition is modest (Anderson 2016). 11.4 CONCEPTUAL OBJECTIONS 32

Moving beyond the question of the basic contours of social rights, the second major advance on Lockean-style theories is the pushback against traditional conceptual objections. A number of “old hoary chestnuts” are often raised in relation to social rights and four are worth considering: positive rights, indeterminate obligations, excessive costs, and nonjusticiability. Notably, both moral and political approaches have been marshaled to overcome these objections even if some degrees of difference remain between different bundles of rights. 11.4.1 Positive Rights and Obligations The negative/positive distinction represents an enduring scaffold in rights thinking. It has been regularly deployed to challenge social rights. A primary

32

Practical and strategic objections are sometimes raised (Neier 2006, p. 3) but they will not be addressed here. See generally Rubenstein (2004).

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complaint is that the open-ended and more opaque nature of positive rights or obligations weakens their normative clarity: [W]hen one discusses civil and political rights, one is generally talking about restraints on governmental action, not prescriptions for such action . . . it is easier to tell governments that they shall not throw persons in jail without a fair trial than they shall guarantee even a minimal but sufficient standard of living.33

However, this position ignores the simple fact that civil and political rights have significant positive components. Realizing the right to personal security, fair trial, property, or political participation requires a host of positive measures that require laws, institutions, action, and resources. Not surprisingly, all international treaties protecting civil and political rights contain positive duties, to “ensure” the rights34 or prevent violations.35 Conversely, it is trite to note that social rights require government restraint: Their realization is dependent on noninterference with access to housing, medical treatment, and schooling. The salience of such restraint varies across different social rights, but it is possible to identify a “negative dimension” in all of them.36 This multifaceted nature of rights has prompted new configurations. A prominent example is the trichotomy of state obligations of respect, protect, and fulfill. Introduced by Asbjørn Eide (1987) and Shue (1980),37 and accepted by some UN human rights treaty bodies, each duty points in a different direction: respect aims at circumscribing governmental abuse, protect at obliging states to regulate private actors, and fulfill at direct measures to ensure realization.38 Alternatively one can, as a number of scholars do, frame the entire catalog of social rights in the negative: “freedom from want,” “freedom from poverty,” “freedom from disease,” etc (see Pogge (2008), Hirschmann (2017), Sunstein (2004), and partly Sen (2009)). Or one can divide social rights along the classical four incidents of rights from Hohfeld (1917): privileges, claims, powers, and immunities (see Langford (2014)). Moreover, a closer examination of social rights theory and practice reveals that these rights share many other structural features with civil and political 33 35 36

37 38

Cited in Schwarz (1995). 34 See, for example, Article 2(1), ICCPR. Articles 2(1), 16, Convention Against Torture. The right to social security is one right in which positive obligations are very prominent: see General Comment 19, The right to social security (art. 9), (Thirty-ninth session, 2007), U.N. Doc. E/C.12/GC/19 (2008) (CESCR). For the history of this intellectual development, see Eide (2006). Although it should be noted that the overuse of this typology has prompted similar complaints about the dangers of rigid categorizations (see Langford and King (2008), Koch (2005), Craven (2005, pp. 30–6)).

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rights. This includes various procedural elements, such as entitlements to information, consultation, due process, and consent, which might arise in cases of interference. The overlap extends to broader participatory dimensions where individuals, as an intended, actual, or potential beneficiary of a right, are permitted to shape the nature and content of social rights, reflecting a general trend in acknowledging individual agency in rights interpretation and achievement:39 the spaces in which rights are determined must be open, informed, and non-paternalistic (Cornwall 2009, p. vii). As Beetham (1995, p. 49) notes, most people do not wish to be the “passive recipient of paternalist social welfare.”40 11.4.2 Determinacy A related critique comes from the assertion that any properly framed right must consist of an entitlement plus a duty. In “entitlement plus” theory, “moral or legal norms directing the behavior of the addressees are essential to the existence of moral or legal rights” (Nickel 2007, p. 31). The philosopher Onara O’Neill (2005, pp. 430, 28) distinctively stated that talk of social rights is “null and void” given the opaqueness of the identity of the duty bearer and the content of duties. Contrariwise, it is presumed that civil rights, as negative claims, can be claimed against everyone: One person’s liberty rights impose on every other human being the obligation to respect them. I am obliged not to murder or steal from other individuals [but] . . . No advocate of welfare rights would say that a poor person has a right to appear at my door and demand food, or a place to sleep. (Kelley 1998, p. 24)

How to respond? Adherents of the narrower “entitlement” approach to rights question the need for clear delineation of the who, what, and when of duties. A right is “a very strong moral reason why people should have a certain freedom, power, protection, or benefit” even if it does not “specify who bears the burden” (Nickel 2007, pp. 30–1 summarizing McClosky 1976). In this modus, rights function as critical norms. Rights provide a lens through which existing and alternative social arrangements are evaluated, challenged, or defended. Thus, “the statement that someone has a right can be used to

39

40

See, for example, Article 29, CRPD; Art. 3 Convention on the Rights of the Child; General Comment 15, Right to water, Twenty-ninth session, 2002), U.N. Doc. E/C.12/2002/11 (2003) (CESCR). See also Madlingozi (2013) and Gaventa (2010).

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perform many speech acts besides claiming a right to something” (Nickel 2007, p. 27). An alternative and complementary response is to acknowledge that not all corresponding duties may be specific and “perfect.” Sen (2004, p. 341) recalls Kant’s notion of imperfect obligations, which are “ethical requirements that stretch beyond the fully delineated duties.” The duty is “to give reasonable consideration to what one can sensibly do for the rights, and the underlying significant and influenceable freedoms, of others” (Ibid., p. 339). This conception of imperfect obligations also permits a more flexible and approach as to when a right must be realized, such as the duty of “progressive achievement” commonly found in the legalization of social rights. Notably, a strict approach to the determinacy of duties would exclude many civil and political rights. The effective realization of these rights often requires positive action, which might be taken by various individuals, actors, and institutions. O’Neill concedes this as much. However, she presses the point about the identification of duty bearers: “we can know who violates a liberty right without any allocation of obligations” (p. 428); and Kelley (1998, p. 27) claims that a “complex set of regulations is required to define the entitlements” for social rights. However, the mere identification of the author of harm does not take us particularly far, neither does it exhaust the set of potential duty bearers nor define the parameters of the duty. A specification of entitlements and exceptions and an institutional apparatus in which they can be exercised is necessary. Indeed, realizing civil rights is not simply about dealing ex post facto with nameable violators. The point is to avoid injury to life, liberty, or property; and such prevention requires an apparatus. Implementing some of these rights (e.g. those concerning the criminal justice system) can be equally as complex as ensuring health and social security, and some states require assistance from international actors in their implementation. Moreover, it is arguable that individuals and private entities can bear social rights obligations. It is curious that many Lockean scholars ignore the specification of such a horizontal duty by Locke for subsistence needs (discussed above). Although the scope of horizontal duties for both civil and social rights must be circumscribed by capacity or influence of individuals and private entities, they are based customarily on some form of interaction: e.g. landlord– tenant, employer–employee, bank–mortgagee, and water utility–customer. Indeed, courts in Germany, South Africa, and Canada have recognized and applied human rights in such horizontal relations. As to what are social rights particularly immune to definition? Unlike civil and political rights, socio-economic rights appear to involve setting a threshold

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on a cardinal or continuous scale. For non-comparative measures, we might measure social rights through liters of water, nutritional calories and proteins, quality-adjusted life years for medicines, years of schooling, etc. For comparative measures, we are concerned with the relative shares of these goods or the relation between disadvantaged groups and other groups in the population. The question is where one places the ruler across these scales in order to reflect a qualitative normative standard (see critique by Kelley (1998, p. 27)). Indeed, universal poverty measures are regularly attacked for their decontextualized inappropriateness (too high in some countries, too low in others) and the arbitrariness of measurement method. Two types of response to this problem exist. The first is to argue that it is possible to determine intertemporal thresholds for social rights with some degree of exactitude (Chapman and Russell 2002). This might be achieved with computational means such as determining the level to meet some standard of functioning or capability (as reflected in many development indicators, e.g. Howard and Bartram (2003)) or the best practices or performance of similarly situated countries (as reflected in the SERF index developed by Fukuda-Parr, Lawson-Remer, and Randolph (2009)). Alternatively, the standards can be determined through a deliberated process. Actors must agree on the relevant standards. Such processes include legislative enactments, multi-stakeholder deliberation, jurisprudential doctrines, or dialogical processes that include elements of each. For instance, the Colombian Constitutional Court has established certain substantive and process-based criteria that a claimant has to meet before they can claim an immediate right to a medicine (Sepu´lveda 2008). Any standard is likely to have strengths and weaknesses: for instance, the MDG’s and World Bank’s ($1) dollar-a-day measurement of extreme poverty permits easy cross-country comparison but is a poor measure of the actual costs of living (Fischer 2013; Pogge 2010). In countries where the majority have their social rights secured, national poverty lines that use a proportion of the median income as the standard are much more likely to reflect whether a person can afford a basic package of social goods and services. The second response to the measurement challenge is simply to acknowledge it (often with the warning that a search for exactitude will usually lead to very minimalistic thresholds) (see Porter (2005), Craven (2005), Young (2008)). This move also permits the observation that civil and political rights face similar and perennial challenges. Delineating a clear inner core is difficult for all rights given the gap between potential minimums and maximum articulations, whether for free expression, legal assistance for trials, policing for security, and prison conditions (Nickel 2013, pp. 984, 98). This

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raises the question as to what level of preciseness is needed for rights if the challenge has not been fatal for legitimating civil and political rights. Analogous to the earlier discussion of imperfect duties, we might turn to notions of reasonableness and process in the absence of clarity, together with institutionalization of the processes of setting relevant benchmarks. 11.4.3 Costs and Resources Most theories of rights include a criterion of feasibility and a requirement that the costs or, more precisely, consequences of a right not be overly or excessively burdensome. The two concepts are often fused under practicability but they are distinct. In the field of civil rights, it is customary to think of competing public policy goals as a “cost,” which may limit the right. This is why there are very few absolute rights. As the progenitor of “rights as trumps” clarifies: Rights may be also less than absolute; one principle might have to yield to another, or even to an urgent policy with which it competes on particular facts. We may define the weight of a right, assuming it is not absolute, as its power to withstand such competition. It follows from the definition of a right that it cannot be outweighed by all goals. Dworkin (1977, p. 92)

Or as he states in the case of socio-economic rights: The claim that someone has a right to a minimum level of welfare, for example, can easily be understood as the claim that it is wrong for governments to maintain an economic system under which certain individuals or families or groups fall below minimum welfare even if that system produces higher average utility (greater overall collective welfare) than any other system. (Ibid., p. 367)

In the case of social rights, the discussion often turns to financial costs. This framing of the debate is somewhat misleading. It needs to be immediately pointed out that social rights possess many immediate dimensions that do not require fiscal outlays. The duties to respect and protect social rights and guarantee non-discrimination are largely immediate. The conflict in these cases will often be competing public policy goals such as national security, public order, public health, or other rights. Moreover, it is accepted increasingly that the implementation of civil and political rights takes time and resources, including fiscal investments (Nickel 2008). Indeed, international

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development targets were recently set for improving a range of civil and political rights by 2030.41 As Holmes and Sunstein (2000, p. 29) put it, Many conservatives cling instinctively to a cost-blind protection of the socalled negative rights of property and contract, because staring hard at costs would shatter the libertarian fiction that individuals who exercise their rights, in the classic or eighteenth-century sense, are just going about their business, immaculately independent of the government and the taxpaying community.

Yet, some social rights will be comparatively costlier in a well-ordered democracy, i.e. a state that does not devote excessive fiscal or other resources to the police, military, or governing elites. Are such high costs fatal for a theory of social rights? In his theory of social rights, Nickel (2007, p. 149) addresses this question of feasibility. He proposes a general test that requires any human right must be feasible in “an ample majority of countries.” He argues that the test is met for a basic package of social rights of some level of adequacy. This is because lower middle-income countries can meet the standard; the minority of poorer countries can be excused on the grounds of inability; and secondary duty bearers such as wealthy countries have a duty to help realize the rights in these countries (Ibid., pp. 140–1, 150). Today, one could go further than Nickel since the overwhelming majority of the world’s poor, 72 percent according to Sumner (2010), now live in middle-income countries. Further, empirical studies cast serious doubt on the idea that resources represent the most serious constraint in realizing, at least, a minimum level of social rights. The SERF project and my econometric work with Anderson reveals a surprising variance of performance on social rights for countries with a similar economic pie.42 However, is Nickel’s test of an “ample majority” of countries appropriate? The implication is that socio-economic human rights might only have emerged at a specific and recent point in history. Yet, these rights have a long historical pedigree. Griffin (2008, p. 177) notes that, Contrary to widespread belief, welfare rights are not a twentieth century innovation, but are among the first rights ever to be claimed. When in the twelfth and thirteenth centuries our modern conception of a right first appeared, one of the earliest examples offered was the right of those in dire need to receive aid from those in surplus.

41 42

See Goal 16 and 5, Sustainable Development Goals. See Fukuda-Parr, Lawson-Remer, and Randolph (2009); Randolph, Fukuda-Parr, and Lawson-Remer (2010 ibid.); Randolph and Guyer (2012); Anderson and Langford (2013); and Dugard, Langford, and Anderson (2017).

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Moreover, Nickel’s test appears contradictory. He allows secondary dutyholders to support realization, which is incongruous with his national starting point. In my view, the simple qualification of “available resources,” found in most philosophical and legal articulations of social rights, is a better response to the challenge (see overview in Langford (2008a)). Feasibility is integrated into the duty rather than being imposed as a condition for the right. Thus, the approach of imperfect duties deals with the demand that resources must be available. If a state can meet a bare threshold, and almost all can, the idea of a right is not threatened. Indeed, the UN CESCR places the burden of proof of states to prove that they cannot meet a minimum essential level.43 And the primary task in such situations is, as Sen (2004, p. 348) notes, “the need to work towards changing the prevailing circumstances to make the unrealized rights realizable, and ultimately, realized.” However, Nickel (2007, p. 151) is right to question the use of “progressive realisation” in social rights if it is not done for civil and political rights. He rightly points out that feasibility is a “serious problem” for this latter set of rights. Thus, his proposal for a consistent approach on progressivity is compelling. He notes that the duties of “respect and ensure” would be appropriate for all sets of rights combined with a supplemental exception for resource availability, which is in effect the doctrinal model of the European Committee on Social Rights.44 Even if social rights are feasible, are the requisite costs bearable? Like any rights, social rights imply the imposition of actual or opportunity costs on other actors or individuals – redistribution in the broad sense of the word. The most classical objections are to arrangements that impose monetary costs. According to Kelley (1998, p. 12), “Enacting entitlements to goods at taxpayer expense has produced exploding costs and a raft of perverse incentives. It is the concept of a right to such goods that gives rise to those and other ill effects.” The variability of economic growth and unemployment since the 1970s in high-income countries means that the question is of universal importance. Such monetary costs commonly involve social transfers (e.g. via social security, public health care, subsidized or free education) or interference with contractual and property arrangements with direct cost implications 43

44

General Comment 3, The nature of States parties’ obligations, (Fifth session, 1990), U.N. Doc. E/1991/23, annex III at 86 (1991), para. 10. This test was reaffirmed in General Comment 19, The right to social security (art. 9) (Thirty-ninth session, 2007), U.N. Doc. E/C.12/GC/19 (2008). See Autism-Europe v. France, Complaint No. 13/2002, Decision on the Merits (European Committee on Social Rights).

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(e.g. minimum wages, quality controls, or housing tenure protections). These actions may raise objections that the interests of individuals are harmed, coerced into sacrificing liberty and property (libertarianism), or their productive contributions or efforts are penalized (the “desert” principle). Alternatively, the purported harm may be collective: general welfare is not promoted as the means to realize social rights retard economic growth and innovation (a utility principle). The costs may also be accepted only on certain conditions: a social welfare model that creates perverse incentives such that individuals take less responsibility for their income, health, and education may be unacceptable. Social rights may also conflict with non-monetary interests generating other sorts of “costs.” In this case, the complaint is more with the “rights” in social rights. Thus, while social rights may only be accepted to the extent they simply reflect an interest or goal, there exists an objection to their substantive transformation into rights.45 A particular concern of some economists is that social rights should not be granted any primary position when trade-offs between different interests are at stake. Following a utilitarian conception, social arrangements should be evaluated as to whether they meet individual preferences rather than predetermined rules and norms. For example, participatory dimensions of social rights may clash with preferences for strongly centralized or technocratic, decision-making on the grounds that the latter is speedy and efficient. Nonetheless, the headline discussions tend to focus on fiscal costs. If we compare the costs of policing, courts, and defense with overall social spending there is some support for this claim. If we take a country in which social rights are very strongly realized, Sweden devoted in 2006 nearly 30 percent of GDP to social spending (accounting for almost two-thirds of the budget) (Guess and LeLoup 2010, pp. 6–7). The United States used just 15 percent of GDP, which accounted for slightly less than half of fiscal spending.46 Yet, even this cost is considered too high by some political parties and commentators (Keeley, 1998, p. 27). Does realizing social rights require such large fiscal commitments? First, not all social expenditures represent pure fiscal commitments. In the United States and Sweden, the overwhelming majority of social security payments are made within social insurance schemes where individuals receive benefits which are

45

46

On the distinctions between rights and goals, see Nickel (2013), Sen (1982), and Dworkin (1977, pp. 90–4). While Mexico used just 5 percent of GDP for social spending (and which accounts for only a quarter of the budget).

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strongly correlated to contributions. The amount devoted to social assistance programs is relatively small in comparison. However, it should be noted that social insurance programmes are often part of an egalitarian pact, as the middle classes incur a higher tax burden. Second, the fiscal costs are dependent on policy design: some countries do not regulate the prices of medicines or fail to keep in check the cost of civil servant pension schemes. Third, the marginal utility or benefits of spending on some civil and political rights may be more quickly reached than social rights. It is more difficult to eliminate crime than absolute poverty and illiteracy. Fourth, and perhaps most importantly, the focus on fiscal costs ignores the principal concern in economics: opportunity costs. Enforcing the negative dimensions of civil and political rights can interfere with economic growth: property rights may halt infrastructure or urban development, while electoral democracy may disincentivize medium-term economic planning. The opportunity costs of the positive dimensions of social rights are well-noted in economics, in particular the crowding out of private savings and access to finance. However, the opportunity costs of not making such fiscal “investments” can be significant, particularly lost human capital or the outbreak of diseases (Bartram 2008, p. 283). For every dollar invested in sanitation the resulting benefits are estimated to be between 9 and 34 dollars (De Albuquerque 2009; UNDP 2007). The empirical debate over such trade-offs between economic growth and social advancement is voluminous. Evidence suggests that civil rights, democracy, rule of law do not harm, and perhaps even promote, economic growth (McKay and Vizard 2005). Chauffour (2009) argues, however, that once the state expands to more positive welfare rights, economic growth is lower. However, his statistical method presumes that the size of the budget corresponds to social rights and he makes little allowance for variance in policy design. Brady (2005) and Cichon et al. (2004) demonstrated that through good policy design, some countries have incurred high fiscal costs in meeting social rights but not at the expense of economic growth rates, while Randolph and Guyer (2012, pp. 319–21) established that a minority of states have achieved and maintained a virtuous cycle of high growth and high social rights realization. These quantitative results confirm the idea that rights and economics can be integrated: the former provides the normative standards and the latter the tools for choice-making and trade-offs within it (Seymour and Pincus 2008). 11.4.4 Legal Implementation and Justiciability Lastly, theories concerning the form of rights implementation have been used to disqualify social rights. One approach is to stipulate that any right must be

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reducible to law: whereby “legal enforcement is central to the existence of rights” (Nickel 2007, p. 32). The idea that rights must be fully expressible in law is somewhat peculiar. It may be possible to argue that the actual enjoyment of those rights in a state may not be limited in fact at a particular point in time, making remedies neither necessary nor sufficient. Nonetheless, the idea that every right must have a remedy has a powerful pedigree and it is fundamental to many conceptions of accountability – the socalled raison d’etre of human rights. With this requirement in mind, the last thrust at social rights has been their nonjusticiability. But like the objections before, it has faltered on theoretical and practical grounds. Justiciability is an “unusually protean” term, manifesting itself in multiple forms (Barton 1983, p. 506). The most precise application is prescriptive. It signifies a threshold or admissibility doctrine where courts decline to investigate the merits of a claim despite possessing formal jurisdiction. Such judicial abdication may be for functional reasons (an absence of judicially discoverable and manageable standards) or prudential (a lack of institutional competence or democratic legitimacy on the part of the judiciary). In countries ranging from Ireland, the Netherlands, and France to Uganda and the Philippines, these functional and prudential reasons separately or together have been sufficient to restrict the justiciable scope of positive obligations (Langford 2014). However, the conflation of justiciability with inadmissibility is problematic. The prevailing “modern” or “constitutional” approach is suspicious of the formalist tradition that permits declarations of non liquet: spaces where no law is declared applicable (Navot 2007; Finn 2002, p. 253). If there are concerns with the suitability of adjudication, this is a matter for judicial self-restraint at the merits phase. As the US Supreme Court stated in 1962, if courts possess jurisdiction over a matter, and an applicant presents a case that is not “absolutely devoid of merit,” they are compelled to conduct a “discriminating inquiry into the precise facts and posture of the particular case” and refrain from seeking to resolve it through “semantic cataloguing.”47 This shift away from justiciability doctrines is evident in the debate over social rights. Scheinin (2005, p. 17) was moved to remark that the justiciability critique of social rights resembled a “quiet echo from the past.” The earliest and most systematic deconstruction of the doctrine by a court came in 1978 by the Supreme Court of Washington in the United States, in Seattle School District No. 1 v. Washington. Adjudicating one of the early school finance cases based on the right to education, the Court rejected the textual argument 47

Baker v. Carr, 369 U.S. 186 (1962) (Supreme Court of the United States), p. 217.

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that the provision was merely “preambular,” vague, or hortatory, as the provision was declarative of a constitutionally imposed duty (p. 499). The Court then dismissed the claim that the provision was solely directed to the legislature and created no subjective rights. These institutions could not be the sole “guardian” as not only were a class of persons mentioned specifically (“all children”), but individual interests were affected. And, it dismissed prudential claims concerning the separation of powers. The Court noted that it was “sensitive to the fact that our state government is divided into legislative, executive and judicial branches” but that the “compartments of government are not rigid” (p. 505) – any need for prudence or judicial restraint was a matter to be considered in the determination of the merits. Similar reasoning can be found elsewhere at the national and international level, with the South African court making the point most pithily: Socio-economic rights are expressly included in the Bill of Rights; they cannot be said to exist on paper only . . . the courts are constitutionally bound to ensure that they are protected and fulfilled. The question is therefore not whether socio-economic rights are justiciable under our Constitution, but how to enforce them in a given case.48

Moving beyond the admissibility stage, have social rights been adjudicated on the merits? The answer is a resounding yes even if the nature and extent of the jurisprudence varies across states. One collection analyzes more than 2000 decisions across 30 different jurisdictions in Europe, Asia, Africa, and the Americas (Langford 2008b). These cases not only deal with obligations to respect, protect, and non-discrimination but also fulfill rights. An example of the latter comes from the Supreme Court of Argentina. In Campodo´nico de Beviacqua, the Supreme Court upheld an order for the continued provision of medication to a child with a disability.49 It affirmed that the right to health in the ICESCR, incorporated in the Constitution, imposed on public authorities an “immediate duty” to take “positive actions” to “guarantee” the right. These duties were to be realized to the fullest extent allowed by available resources, but the state must develop a plan of action to reduce infant mortality and assure medical service and medical attention in the event of sickness. In subsequent cases, the Court has gone further by suggesting that statutory interpretation of health legislation must be guided by minimal constitutional 48

49

Government of the Republic of South Africa and Others v. Grootboom and Others, 2000 (11) BCLR 1169 (CC) (Constitutional Court of South Africa). Campodo´nico de Beviacqua, Ana Carina v. Ministerio de Salud y Banco de Drogas Neopla´sicas, 24 October 2000 (Supreme Court of Argentina). See generally Courtis (2008, p. 172).

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considerations, including the provision of “full essential medical services in case of need.”50 The most challenging and limited form of litigation is egalitarian claims that challenge disparities. Generally, most litigation requires a comparison of the position of an individual or group with some threshold of accessibility, affordability, or quality. That in itself raises questions of institutional competence and democratic legitimacy of courts. But courts are able to engage in different reflexive processes that push states to review these thresholds. However, addressing disparities outside of a threshold risks plunging a court into fundamentally distributive questions. Nonetheless, a closer examination of the jurisprudence indicates that principles of equity have been judicialized in a number of respects. The first is the defense of legislation that promotes equitable objectives.51 The second is to apply principles of equity in examining the rights and duties of the specific parties in a case.52 Greater protection is given to “weak and defenceless individuals and groups,” while private property rights that affect “community interests or environmental integrity” and municipal obligations to the community are scrutinized more closely (Cepeda-Espinosa 2004, p. 661).53 A third use of equitable principles is to challenge laws or social arrangements in which the most disadvantaged bear the greatest burden. The decision of the New Jersey Supreme Court in Abbott v. Burke XXI explicitly recognized that the most disadvantaged schools would bear the burden of retrogressive cuts in school funding.54 A final area where equity had been made justiciable is equal opportunity. Some social rights have very strong linkage effects: outcomes for these rights determine whether individuals have an equality of opportunity in accessing other social, civil, and political rights. Rights to health and to primary and secondary education are pertinent in this regard. Thus, it is perhaps not surprising that the greatest adjudicative focus by courts on disparities has emerged in these two areas and particularly in states racked by high levels of inequality.55 50 51

52 53

54

55

Cited in Courtis (2009, p. 390). Emphasis added. Public Utilities Case, C-566 of 1995 (Constitutional Court of Colombia); City Council of Pretoria v. Walker; Marschall v Land Nordrhein-Westfalen, [1997] ECR I-6363 (European Court of Justice); Pradhwosh Chhetri and Others, NKP 2061 No 7. p 901 (Supreme Court of Nepal), Judgement C-371 of 2000 (Constitutional Court of Colombia). Cepeda-Espinosa (2004, p. 662). As an example, see Port Elizabeth Municipality v. Various Occupiers, 2005 (1) SA 217 (CC) (Constitutional Court of South Africa). See also Disbursement Law Case, Case No. 2009–43–01 (Constitutional Court of Latvia). Although, see a refusal by a court to do this in Mazibuko and Others v. City of Johannesburg and Others, 2010 (4) SA 1 (CC) (Constitutional Court of South Africa). For a critique, see Liebenberg (2010, pp. 472, 76–9). See Robinson v. Cahill, 62 N.J. 473 (1973) (Supreme Court of New Jersey, United States) and Medicines Case, T-760 of 2008 (Constitutional Court of Colombia).

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11.5 CONCLUSION

While socio-economic rights may seem like the poor cousin of human rights for moral theorists, this essentialist dogma is no longer sustainable. Socioeconomic human rights can be justified across a spectrum of moral theories ranging from freedom and agency to need and justice. Moreover, this chapter has argued purely moral approaches to social rights are limited. They neglect the more grounded origins of social rights practice and the insights it brings to difficult questions in moral theory. Thus, any fully fledged theory of social rights must take into account both domestic and international practice. It provides an insight into challenging questions around the scope of social rights and their egalitarian character. Moreover, such practice help us to resolve classical conceptual objections concerning social rights – such as concerns with the positive orientation of socio-economic rights and issues of indeterminacy, resource costs, and justiciability. International treaties, court practice, actual budget allocations, and economic analysis of the effects of institutionalizing socio-economic rights suggest that many of the traditional concerns need to be significantly nuanced. Socio-economic rights is a practice which does not generate all or many of the outcomes or dilemmas predicted earlier by theory. BIBLIOGRAPHY Alston, P. (1984) “Conjuring Up New Human Rights: A Proposal for Quality Control,” American Journal of International Law, vol. 78 no. 3, pp. 607–21. Anderson, E. (2016) “Equality as a Global Goal,” Ethics and International Affairs, vol. 30 no. 2, pp. 189–200 Barton, T. (1983) “Justiciability: A Theory of Judicial Problem Solving,” Boston College Law Review, vol. 24 no. 3, pp. 505–634. Bartram, J. (2008) “Improving on the Haves and Have-nots,” Nature, vol. 452 no. 20, pp. 283–84. Beetham, D. (1995) “What Future for Economic and Social Rights?,” Political Studies, vol. 43 no. 1, pp. 41–60. Beitz, C. (2009) The Idea of Human Rights, Oxford: Oxford University Press. Berlin, I. (1993) The Hedgehog and the Fox: An Essay on Tolstoy’s View of History, Chicago: Elephant Paperbacks. Bilchitz, D. (2007) Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights, Oxford: Oxford University Press. Brady, D. (2005) Structural Theory and Relative Poverty in Rich Western Democracies, 1969–2000, Luxembourg Income Study Working Paper Series, working paper no. 407, March 2005. Buchanan, A. (2010) “The Egalitarianism of Human Rights,” Ethics, vol. 120 no. 4, pp. 679–710.

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Caney, S. (2001) “Cosmopolitan Justice and Equalizing Opportunities,” Metaphilosophy, vol. 32 no. 1–2, pp. 113–34. Cepeda-Espinosa, M. J. (2004) “Judicial Activism in a Violent Context: The Origin, Role, and Impact of the Colombian Constitutional Court,” Washington University Global Studies Law Review, vol. 3 no.4, pp. 529–699. Chapman, A. and Sage, R. (2002) Core Obligations: Building a Framework for Economic, Social and Cultural Rights, Antwerp: Intersentia. Cichon, M., Scholz, W., van de Meerendonk, A., Hagemejer, K., Betranou, F., and Plamondon, P. (2004) Financing Social Protection, Geneva: ILO/ISSA. Cornwall, A. (2009) “Locating Citizen Participation,” IDS Bulletin, vol. 33 no. 2, pp. i–x. Courtis, C. (2008) “Argentina: Some Promising Signs,” in Langford, M. (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, Cambridge: Cambridge University Press, pp. 163–81. (2009) “Standards to Make ESC Rights Justiciable: A Summary Exploration,” Erasmus Law Review, vol. 2 no. 4, pp. 379–95. Cranston, M. (1973) What Are Human Rights?, London: Bodley Head. (1983) “Are There Any Human Rights?,” Daedalus, vol. 112, pp. 1–18. Craven, M. (2005) “Assessment of the Progress on Adjudication of Economic, Social and Cultural Rights,” in Squires, J., Langford, M., and Thiele, B. (eds.), The Road to a Remedy: Current Issues in Litigation of Economic, Social and Cultural Rights, Sydney: UNSW Press and AHRC Centre, pp. 27–42. Crowley, J. (1998) “The National Dimension of Citizenship in T.H. Marshall,” Citizenship Studies, vol. 2 no. 2, pp. 165–78. De Albuquerque, C. (2009) Report of the Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation. Donnelly, J. (2009) Human Dignity and Human Rights, Working Paper, Swiss Initiative to Commemorate the 60th Anniversary of the UDHR, Protecting Dignity: An Agenda for Human Rights. Dugard, J., Langford, M. and Anderson, E. (2017) “Determining Progress on Access to Water and Sanitation: Law and Political Economy in South Africa,” in Langford, M. and Russell, A. (eds.), The Right to Water: Theory, Practice and Prospects, Cambridge: Cambridge University Press. Dworkin, R. (1977) Taking Rights Seriously, Cambridge: Harvard University Press. Eide, A. (2006) “State Obligations Revisited,” in Eide, W. B. and Kracht, U. (eds.), Food and Human Rights in Development, Vol. II: Evolving Issues and Emerging Applications, Antwerp: Intersentia. Esping-Andersen, G. (1990) The Three Worlds of Welfare Capitalism, Princeton: Princeton University Press. Finn, C. (2002) “The Justiciability of Administrative Decisions: A Redundant Concept,” Federal Law Review, vol. 30 no. 2, pp. 239–63. Fischer, A. (2013) “The Political within the Depoliticised: Poverty Measurement, Implicit Agendas and the MDGs,” in Langford, M., Sumner, A. and Ely Yamin, A. (eds.), The MDGs and Human Rights: Past, Present and Future, Cambridge: Cambridge University Press. Føllesdal, A. (2011) “The Distributive Justice of a Global Basic Structure: A Category Mistake?,” Politics, Philosophy and Economics, vol. 10 no. 1, pp. 46–65.

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Sepu´lveda, M. (2008) “Colombia: The Constitutional Court’s Role in Addressing Social Injustice,” Langford, M. (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, Cambridge: Cambridge University Press, pp. 144–162. Simmons, J. (2001) Justification and Legitimacy: Essays on Rights and Obligations, Cambridge: Cambridge University Press. Sumner, A. (2010) “Global Poverty and the ‘New Bottom Billion’: What If ThreeQuarters of the World‘s Poor Live in Middle-Income Countries?,” IDS Research Summary of IDS Working Paper 349, IDS, Brighton. Sunstein, C. (2004) The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever, New York: Basic Books. Tully, S. (2005) “A Human Right to Access Water? A Critique of General Comment No. 15,” Netherlands Quarterly of Human Rights, vol. 23 no. 1, pp. 35–63. UNDP and WHO (2007) Economic and Health Effects of Increasing Coverage of Low Cost Household Drinking-Water Supply and Sanitation Interventions to Countries Off-Track to Meet MDG Target 1 (WHO, UN doc. WHO/SDE/WSH/07/0: Geneva). Vizard, P. (2006) Poverty and Human Rights: Sen’s Capability Perspective Explored, Oxford: Oxford University Press. Yamin, Alicia Ely. and Gloppen, S. (2011) Litigating Health Rights: Can Courts Bring More Justice to Health?, Cambridge, MA: Harvard University Press. Young, K. (2008) “The Minimum Core of Economic and Social Rights: A Concept in Search of Content,” Yale Journal of International Law, vol. 33 no.1, pp. 113–75.

Index

human right to, 50, 122, 248–9 dignity, 88–9, 98, 108–10, 113–16, 132, 136, 196, 258–9, 261, 267, 273, 275, 276–7 Donnelly, Jack, 42–3, 45, 266 duties, 19, 46, 51–2, 72, 86, 99n2, 101–2, 107, 109–10, 114, 117, 120, 131, 141, 161, 181, 187–92, 197–8, 229, 231–4, 243, 254, 263–5, 272, 276, 279, 281–5, 287, 291–2

agency, 16, 34, 39–40, 46–7, 80, 102–3, 114–17, 166, 225, 258–9, 261, 265–6, 268, 282, 293 Apel, Karl Otto, 109–10 autonomy, individual, 48, 59, 68, 170, 215, 217, 261–2, 265–6 Beitz, Charles, 4, 15–23, 25–6, 31, 33–42, 44–5, 49–52, 54, 58, 61–4, 74, 78, 82–3, 89, 125, 150, 159–60, 165, 181, 183, 191–2, 195, 205, 209–10, 212–14, 230, 236, 239–40, 243–53, 255–6, 258, 269–70, 274, 279 Benhabib, Seyla, 109–10 Besson, Samantha, 45–6, 84 Buchanan, Allen, xii, 4, 6, 19, 27–9, 48, 58–9, 61, 74, 78–9, 91, 97–8, 101–2, 107, 110, 111n16, 112n17, 115–17, 119–22, 159–60, 163–4, 195, 219, 223–5 Caney, Simon, 60–2, 68, 279 capabilities, 103, 109, 115, 117, 121, 261–3 CEDAW. See Convention on the Elimination of Discrimination Against Women Cohen, G. A., 166–7 Cohen, Joshua, 4, 26, 89, 105–6, 192–3 Convention Against Torture, 281n35 Convention on the Elimination of Discrimination Against Women, 247, 272n17 Convention on the Prevention and Punishment of the Crime of Genocide, 69 cosmopolitanism, 263 Cranston, Maurice, 3, 258, 260, 270, 272, 274 democracy conceptually linked to human rights, 109–11, 121–2

ECHR. See European Court of Human Rights egalitarianism, 41, 48–9, 74, 92, 101–2, 116, 166n18, 193, 267, 269, 274–5, 277–80, 292–3 enforcement, 37n1, 38–9, 41–5, 47, 99, 105–6, 132, 164, 237n9, 290 equality, 48–9, 65, 88, 91, 115n23, 148–9, 151–2, 166, 195–7, 205, 218–19, 224–5, 241, 258–61, 263–4, 267, 269–70, 272, 274–9, 280, 292 Etinson, Adam, 5, 16, 25–6, 58, 79–80, 90–1, 93, 212n3, 214 European Convention on Human Rights, 85, 92 European Court of Human Rights, 53, 85 Forst, Rainer, 48, 52, 109–11, 167n20 freedom innate right to, 149, 151–2, 183 of choice, 143, 145 of conscience, 69, 111, 216 of expression, 61, 70, 90, 107, 111, 121–2, 260 of movement, 69, 216, 263 of religion, 69, 162, 207, 216 Gewirth, Alan, 158, 268n12 Gilabert, Pablo, 5, 16, 26, 58, 86, 116, 183, 198, 212n3

299

300

Index

Glendon, 129–30 Glendon, Mary Ann, 146–9, 152, 271 Griffin, James, 3, 15–16, 18–19, 23–4, 27–9, 58–9, 78, 80, 88, 97, 100n5, 101–2, 114–15, 125, 165–7, 170–1, 176–7, 183, 187, 204, 212, 214, 225, 265–6, 270, 286 Habermas, Ju¨rgen, 49, 97, 102–3, 107–15, 120–1, 162n13, 176 human dignity, 48–9, 79–81, 87–9, 91–2, 99, 101–3, 105, 109n12, 113–15, 117, 119, 121, 127, 136, 139, 150, 212, 237, 266–7 human rights courts, 42, 53, 77–8, 81–3, 86, 91, 100–2, 116n25, 207–8, 211, 234 moral conception of, xi, 3–4, 16, 19–20, 23–4, 29, 58, 74, 78–81, 84, 91–3, 97, 104, 113–17, 125–7, 153, 157–61, 165–71, 174–9, 182–3, 189–90, 194–9, 201, 230, 233–7, 254n19, 258–9, 268–9, 273, 276, 280, 293 naturalistic conception of, 15, 25–6, 125–7, 204–5, 208, 211–14, 226 political conception of, xi, 4–5, 19–23, 25, 29–30, 33–5, 44, 49–50, 54, 58–60, 74, 78–93, 97, 103–9, 125–8, 150–1, 153, 157–61, 165–9, 171–5, 178–9, 182–3, 189–94, 201, 204–5, 208–11, 213, 229–30, 233–56, 259, 268–9, 272–3, 280 treatises, xii, 34, 37, 40, 44, 46–8, 53, 77–8, 81–3, 99–101, 118n29, 163–4, 235, 237–8, 247–8, 253–4, 262–3, 271–4, 278, 281 universality, 226 universality of, 62–3, 79–80, 82–3, 90, 182, 186–8, 199, 212–13 human rights practice, xii, 17–20, 22–3, 27–31, 35, 37–8, 40–2, 48, 77–8, 83, 88, 97, 103, 159–60, 162, 165, 173–6, 178, 181, 183, 195, 197, 211, 230, 243, 249, 269 ICCPR. See International Covenant on Civil and Political Rights ICESCR. See International Covenant on Economic, Social and Cultural Rights ideal theory, 17n2, 21–2, 29–31, 60, 73 Ignatieff, Michael, 4, 45, 80, 90 international courts, 84, 86, 101 International Covenant on Civil and Political Rights, 37, 99n2, 114n20, 208, 238, 281 International Covenant on Economic, Social and Cultural Rights, 37, 99n2, 100, 101n7,

114n20, 115n21, 118n29, 238, 270–2, 274–5, 291 international law, xi, 16, 19, 21, 28, 37–8, 42, 44–5, 58, 60, 62, 69–71, 74, 82–3, 91, 100–1, 112, 120, 126–42, 146, 150–1, 159, 211, 221, 232, 240, 242, 266, 270, 273, 279–80 justice basic, 263–4 distributive, 74n18, 110n15, 112, 270 international, 19, 22, 31, 106, 240–41 legal, 69, 104 principles of, 19–20, 31, 61, 65, 73, 88, 105–7, 125, 145, 167, 240–41, 258, 263, 270, 277–9 reparative, 224 social, 97, 122, 152 Kant, Immanuel, 6, 9, 70, 114, 126–8, 131–5, 137–53, 283 legalization, 33–4, 37n1, 39, 41, 44–6 legitimacy, xi, 23, 29, 46, 53, 59, 61, 71, 77–8, 111–12, 119–20, 127, 144, 163–4, 181, 184, 188–93, 200, 245–6, 271, 284, 290, 292–93 Liao, S. Matthew, 5, 16, 25–6, 58, 79–80, 82, 91, 93, 212, 214 liberty, 63, 104, 106, 115n22, 241, 244, 246, 259–62, 265–67, 277, 282–3, 288, 293 Locke, John, 259–61, 263, 283 migration, 181–9, 192–4, 196, 199–201 minimalism, 86, 90, 105–6, 234, 264, 270 natural law, 152, 211 Nickel, James, 6, 17–20, 27, 34–5, 53, 58, 61–2, 68, 99n3, 106n9, 212, 258, 261n5, 266n8, 267–8, 270, 272, 282–8, 290 Nussbaum, Martha, 3, 62n2, 113n18, 115, 262n6, 265, 267n9 O’Neill, Onora, 185, 193–4, 198–9, 283 obligations, 39–40, 42, 77, 81–3, 85, 118n29, 120, 128, 136–8, 141, 159–62, 164–5, 167–8, 171, 174, 178, 185, 198–9, 229–39, 241–5, 249–56, 260, 263–4, 270, 274, 279–81, 283, 290–2

Index personhood, 59, 68, 115–16, 170, 194, 259, 265, 270 Pettit, Philip, 164, 278n28 Pogge, Thomas, 19, 89, 102, 106–8, 111n16, 113, 118–19, 263–4, 281, 284 power, 34, 41, 43, 45–7, 49, 51–2, 78, 85, 98n1, 107, 118, 133, 138, 144, 146, 152, 163, 169, 207–8, 220–4, 242–4, 259, 261, 267, 279, 282, 285 practice dependence, 85, 160 Rawls, John, xi, 4, 6, 8, 15, 17, 19–23, 25–6, 30–1, 41, 59–74, 78, 82, 87–91, 97, 102–10, 112, 115n22, 121, 125, 133–5, 159, 162n13, 164, 166–7, 181, 183, 191, 193n11, 210, 218, 225, 230, 239–44, 247, 250–6, 277–8 Raz, Joseph, 15–17, 20–1, 23–6, 28–9, 38, 58, 66n6, 67, 72–4, 80, 82–3, 86, 181, 183, 191, 195, 210–11, 213, 230, 239–44, 247, 250–6, 261n5 right, a to a healthy environment, 100–2 to democracy, 50, 121–2, 248–9 to development, 206 to due process, 69 to education, 70, 85, 242, 263, 290 to equal pay, 85, 105 to freedom, 151, 183 to freedom of movement, 69, 216 to freedom of speech, 61, 70, 111, 198 to health care, 73, 118n29, 264, 273, 275, 291–2 to hospitality, 132, 138–42 to liberty, 69, 106, 115n22, 241, 282–3 to life, 69, 106, 110n15, 142, 149, 188, 241, 260 to periodic holidays, 115n21, 170, 242, 272–4 to political participation, 39, 48–51, 61, 106, 209, 245, 248–9, 270, 274, 281 to practice one’s religion, 69, 111, 207, 216 to property, 67, 69, 111, 206, 260–1, 281, 289, 292 to security of the person, 69, 106, 281 to self-determination, 50, 204–11, 214–16, 219–26 to subsistence, 105, 111–12, 262 to water, 262, 271 to welfare, 99–100, 170, 185, 262–3, 277, 282, 285–6 rights cultural, 37, 99n2, 108, 111n16, 146, 216, 274n21

301

indigenous, 10–11, 48, 54, 100, 131, 204–11, 214–16, 219–26 legal, xi, 27–8, 45–6, 77, 84, 91, 109–10, 115–17, 199–200, 282 moral, xi–xii, 16, 19–20, 23–4, 26–9, 58, 78–81, 84, 86, 88, 91–2, 109–10, 158–9, 181–3, 194, 197–9, 200–1, 210–12, 216, 237, 282 natural, xii, 15, 26–7, 80, 92, 125, 198, 212 social, 37, 85, 99n2, 108, 110–12, 146, 206, 216, 247, 258–9, 261–2, 265–74, 276–93 socio-economic, 258–64, 267–9, 274, 280, 283, 285–6, 291, 293 Ripstein, Arthur, 70n14, 74n18 Ruggie, John, 118n29, 229–39, 249–51, 253–6 self-determination, 40, 50, 72, 120, 204–11, 214–16, 219–26, 248 Sen, Amartya, 3, 90, 115, 159n6, 261–5, 268, 281, 283, 287–8 Simmons, A. John, 26–7, 182, 189, 191, 259 Simmons, Beth, 43–7, 85 solidarity, 10, 122, 157–8, 161–79 sovereignty, xi, 21–3, 28, 31, 72–4, 82–3, 98, 111, 133–4, 137, 141n26, 152, 210–11, 213, 222, 224, 234, 241–2, 253 state of nature, 81, 259–61 Tasioulas, John, 6, 34, 58, 71, 78–81, 84, 86, 89, 92, 193, 197 torture, 53–4, 64, 68–9, 81, 101n7–2n7, 110n15, 119n29, 137, 185, 188, 265 UDHR. See Universal Declaration of Human Rights Universal Declaration of Human Rights, xi, 37–8, 40, 42, 87, 97–102, 104–10, 114n20, 115n21, 116–17, 122, 128–31, 134, 136–7, 145–50, 152, 213–15, 226, 234–5, 238, 241–2, 260, 268, 270–2 Valentini, Laura, 2, 5, 6, 30n5, 34, 51–2, 71n15, 79, 86, 183, 185, 187, 189n7, 195, 197–8 Waldron, Jeremy, 88, 223–4, 276 Wenar, Leif, 70–1 women’s human rights, 36, 39, 49, 54, 209, 245–9